Jamal Greene

@Greg651 One would be forgiven for asking why this case is in federal court. He styles it as if judges made Washington pass this law.

@dilanesper Not disputing that, just saying it’s not apples to apples

@jamalgreene that's true but their interpretation of the statute was still bats.

SCOTUS nerd material: Gorsuch (cheered on online by the Right) ID's 4 opinions where he says liberals' positions were inconsistent with the position they took on tariffs-- greenhouse gases, vaccine mandates, student loans, and eviction moratoria. He's wrong on 3 and right on 1.

@dilanesper Important to note though that the eviction moratorium decision was an emergency order vacating a lower court’s stay, so (unlike the tariff decision) the dissenters’ dispute there extended to the equities of emergency relief, not just statutory interpretation.

However where Gorsuch is wrong is: 1. You can get to Friday's result without using the major questions doctrine. and 2. 3 of the 4 cases he cites were statutes much more specific in granting the authority than IEEPA.

@jadler1969 Of course not, but when the charge is hypocrisy or disingenuousness--a serious charge--you need something more than a prior case where she relied on MQD, since her only claim is that it isn't needed here. You'd need to show that she's clearly wrong that it isn't needed here.

@jamalgreene But surely you're not going to argue that text alone captures all meaning, right?

A receipt Gorsuch overlooked: Kagan and Sotomayor had no problem joining the Chief's deployment of MQD in King v Burwell.

@jadler1969 The words are important in judicial opinions.

@jamalgreene Not in so many words.

@jadler1969 @CBHessick Not joining analysis they find unnecessary to the holding is different from refusing to adhere to prior precedent. Seems straightforward to me, especially when the additional analysis is controversial.

@CBHessick Following it once it's been established. Sometimes Kagan follows along, as in some of the separation of powers cases, and sometimes she doesn't, like here

Interesting--and telling--that the progressive justices were not willing to embrace MQD as a reason for rejecting the Trump Administration's tariffs.

@marcus_walters @Greg651 👍

@jamalgreene @Greg651 I am not refuting anything, just making clarifying points. General commentary, it was not mean to be adversarial in its points, rather a reference to facts bc of questions posted by another. 🤷‍♂️

@marcus_walters @Greg651 I did not say any of the things you are attempting to refute.

Work authorization (EAD) is temporary, often restricted. It’s in no way tied to a TPS directly though may be a result of granting TPS. An EAD in no way infers lawful status as it can be granted for those out of status awaiting adjudication proceedings. There is no world where a work authorization is coequal or in replacement of a valid VISA or Residency (Green Card). As an important note: use of an EAD can terminate certain nonimmigrant status if it means no longer adhering to terms. US Immigration law is clear on these points. See INA § 274A, 8 CFR § 274a.12

@Greg651 I didn’t interpret it as a dunk. I don’t know whether the judge was referring to his bond or TPS in that statement (or whether he meant the “no documentation” claim), but TPS would be sufficient for lawful presence and is “documentation” (as is, arguably, his bond order).

Explainer from (GWB appointee and former US Attorney) Thomas Johnston for those open to better understanding how the Due Process Clause relates to the dispute over the application of 8 U.S.C. 1225 to aliens living in the United States. storage.courtlistener.com/recap/gov.usco…

@ilan_wurman @teafortillerman You said regardless of whether the 5th Cir was right about the statute, there is no due process issue. I disagree (regardless of what SCOTUS would say). You also said my position carried various implications for people at ports of entry, which isn’t so for reasons I stated. Fin.

I am not sure where this has gone exactly or what I misattributed to you but it is obvious we and you are talking past each other. If you think that the statute requires detention, and that that would be constitutional (is that what you’re disputing?), and that the individuals are admitted to be within the category of persons, there is no due process problem. If what you are arguing is that the statute as interpreted by the Fifth Circuit is actually unconstitutional because it deprives these individuals of due process then I suppose we just disagree about whether the Supreme Court is likely to view it that way.

One can think the decision is wrong or bad on policy, but that doesn’t make it a “due process” issue. Not everything is about due process. Whether one is released pending removal doesn’t seem related to the procedure for determining eligibility, removability, etc.

@teafortillerman @ilan_wurman First, as you will see if you read further, the language of that statement was refuting a claim Prof. Wurman misattributed to me. It’s his hypo, not mine. Second, not everyone present in the US has the same liberty interests, even though the due process clause applies to all.

@jamalgreene @ilan_wurman (Surely you don’t imagine that detention is a one-time event rather than an ongoing status?)

@teafortillerman @ilan_wurman Yes, the due process clause applies to everyone in the country. (Though not everyone in the country has the same liberty interests.) The original statement you asked the source of is fully consistent with that.

@jamalgreene @ilan_wurman Once he enters the country, he does. (According to your cite, which I assume remains good law.)

@teafortillerman @ilan_wurman A foreigner presenting at a port of entry isn't covered by the Zadvydas language and thus doesn't have the same due process right against detention (in that moment) as someone who has been living here.

@jamalgreene @ilan_wurman In what country do you think applicants who present at a port of entry for inspection are detained?

@teafortillerman @ilan_wurman You are mistaken. The words state the position I stated, which is well-established in U.S. law.

@jamalgreene @ilan_wurman If anything, the words after “whether their” explicitly refute your position. Were citing it as support, or an opposing view?

@teafortillerman @ilan_wurman SCOTUS. See Zadvydas v. Davis ("[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.")

@jamalgreene @ilan_wurman “The due process right to not be detained for someone at a port of entry is not the same as for someone who has been living here for years” Says who/what?

@AlanOstergren @ReichlinMelnick @ilan_wurman Neither case rejects the claim that due process requires an individualized justification to detain people in the interior with significant ties in the US, and it is relevant to such a claim that no one, including the executive, suggested the INA requires such detention until now.

@jamalgreene @ReichlinMelnick @ilan_wurman Yes, I understand. But that claim has been repeatedly rejected by the Supreme Court. See Jennings v. Rodriguez and Johnson v. Arteaga-Martinez. When the statute authorizes detention, the court will not read into it a due process based right to bond hearings.

@AlanOstergren @ReichlinMelnick @ilan_wurman The due process right he is referring to relates to their detention, not their removal.

@ReichlinMelnick @jamalgreene @ilan_wurman Yes, but heightened in comparison only to the executive’s nearly unfettered right to deny admission at the border. These aliens will get all their rights to challenge removal while in custody.