Since April, the Supreme Court has issued a series of conflicting rulings pertaining to due process during deportation operations. Perhaps because of this lack of clarity, Immigration and Customs Enforcement’s new memorandum — saying it will give certain individuals facing deportation just six hours’ notice to try to reach a lawyer — fails to comply with the most basic elements of due process.
The time frame provided in the memo is laughable at best, and a cruel hoax at worst. It also violates the most basic tenets of due process.
The time frame provided in the memo is laughable at best, and a cruel hoax at worst.
Eighty years ago, the Supreme Court ruled that “notice which is a mere feint is not due process.” There, the court found that the notice someone receives that they are going to be subject to some legal action must be “reasonably calculated” to apprise them of the legal jeopardy they face in a manner that affords “them an opportunity to present their objections.”
What ICE is planning to do is just this sort of feint, but the Supreme Court’s recent conflicting rulings on procedural grounds have left us in the current situation.
In April, the court ruled in Trump v. J.G.G. that individuals in deportation proceedings were entitled to due process and an opportunity to challenge their deportation through a habeas corpus petition. The court there found that the “notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
That was a unanimous decision, issued on what legal scholar Stephen Vladeck refers to as the Supreme Court’s “shadow docket”: where the court deals with applications regarding emergency situations in cases pending in the lower courts. But given the general lack of transparency in the court’s rulings in these emergency situations, it can leave litigants questioning the state of law, even after the court issues a decision.
A perfect example of this phenomenon occurred in late June. The Supreme Court, without offering any reasoning for its ruling, issued another order, this time in the case D.H.S. v. D.V.D., that prevented a trial court judge’s preliminary injunction — halting the deportation of a group of detainees to South Sudan — from going into effect. The lower court found that the detainees were entitled to an opportunity to challenge their deportation with the basic protections of due process. But the Supreme Court intervened to allow those deportations to go forward.
Historically, due process has required that someone who faces the loss of life, liberty or property must receive meaningful notice of the threat to their interest, an opportunity to be heard to defend against that threat and to have one’s claims reviewed by an impartial adjudicator. But in the case involving the men being deported to South Sudan, the Supreme Court gave no reasoning for its order, issued on its shadow docket, halting the lower court ruling. (In a subsequent “clarifying” ruling in the case, also on its shadow docket, it did not provide any justification for the June order.)
In a blistering dissent to that June order, joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor emphasized that the due process clause “represents ‘the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.’” She would argue that the majority of the court was “rewarding lawlessness” and undermining “this foundational principle.”
Clearly emboldened by the Supreme Court’s intervention in the D.H.S. v. D.V.D. case, ICE has now offered little in the way of constitutional protections for individuals it claims it can deport to “third countries”: that is, countries apart from the individual’s country of origin, where those individuals are likely to suffer harmful consequences if they are returned there. But the decision to send detainees to third countries without a modicum of due process is one the Supreme Court seems to have authorized, if we are to take their most recent and reasonless decision seriously. The decision to send detainees to third countries without a modicum of due process is one the Supreme Court seems to have authorized. That case — which involved individuals being held in a plane sitting on the tarmac in Djibouti as they waited their final deportation to South Sudan — may have been one in which a majority of the court did not want to intervene, given its factual peculiarities. One can hope the court will return to its prior position, as reflected in Trump v. J.G.G. and its prior precedents, that due process cannot be a “mere feint”: it requires more than six hours’ notice before detainees are deported. Certain members of the Supreme Court tend to bristle when they are accused of using the emergency or shadow docket to make substantive law. Let’s take them at their word that the June order in D.H.S. v. D.V.D. was not meant to set any legal precedent, especially where, as here, the justices in the majority did not even provide any reason for the ruling. Immigrant detainees able to secure representation will no doubt challenge the new ICE memo in the courts, and the Supreme Court will likely have to, once again, wade into this issue. A straightforward answer from the court should confirm what due process has meant for decades. And it should be plain to anyone who believes in the rule of law that whatever “process” ICE is saying it is going to provide potential deportees, due process it is not.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
