Barrett, Sotomayor Tricked in Trump v. CASA

The basic question in Trump v. CASA is can a court enjoin the government from just grabbing everyone off the street without even an accusation, and just make them all file habeas petitions? Or is it up to the voters to make the decision whether we want to have a nation of laws, by whether they elect an executive who does this?

Trump v. CASA is not a dispute of whether a law is unconstitutional, or of the interpretation of a (citizenship) law. The dispute is whether individual liberty interests can be transacted without due process, by the executive branch reinterpreting general law or even just words to reduce individual liberties, rather than discovering case-specific facts. (And whether the Court’s ruling in Trump v. CASA violates substantive due process or something like that.)

Sotomayor said “Tomorrow, a different administration may try to seize firearms from law-abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief.”

Sotomayor gets misdirected by executive-branch tricks and frames this wrong. Sotomayor misses that it is not the specific policy such as confiscating guns that is unlawful — it is not an issue of interpreting gun laws — it is an issue of transacting individual liberty interests without due process, by the executive branch rather than a court or legislature reinterpreting law.

Can government infringe liberty interests without due process, by reinterpreting the law as permitting some action for a specific set of facts? Where that set of facts is the same, known and not in dispute, for large groups of people in identical situations? So that no process for determining fact in individual cases is necessary, and all that is necessary to infringe liberties is a reinterpretation of the law upon the fact-set common to all the affected individuals?

The trick is government infringing liberty interests without due process, but tricking courts into thinking it is a law-interpretation disagreement, by the executive branch legislating.

The government could suddenly round up everyone who has ever had a speeding ticket and put them in prison. And explain that this is because the punishment for a speeding ticket is life in prison. Or the actual meaning of “$100 fine” is indefinite detention. Barrett would then say rounding people up and putting them in prison is not a lack of process, it is a disagreement about traffic laws. Or about the legal effect of certain words in sentencing.

Due process has two parts, 1) determining the facts of individual situations, and 2) comparing those facts to law. Usually the government is not in disagreement what the punishment is for murder, but whether an individual case amounts to murder.

Whether individual circumstances violated the law must be determined in each case. The law may also have to be interpreted on new unanticipated or unique circumstances. But what the law says for common standard known circumstances is generally not litigated anew in each case, but decided once for everyone.

Government can skip the factual dispute for each individual, by saying the facts are known and not in dispute, and simply saying the law permits them to round people up in those known common circumstances.

The question is does due process require courts stand between individual liberty interests and the executive branch, to provide a remedy when government has a policy to mass-violate individual liberty interests in known common circumstances.

And the government misdirects courts by saying they are simply changing or interpreting the law that applies to everyone (maybe the public supports a law change), rather than finding new facts or events that break the law in individual cases.

If a law was passed saying the sentence for every past marijuana conviction is now zero, 100 prisoners might still have to file 100 individual petitions to get out of prison. But if the law suddenly said everyone in prison now has a life sentence, it seems due process would require the government go through a process for each individual prisoner before it could change all 100 sentences. Rather than each prisoner having to sue to get that process.

Justice Jackson said “permit the Executive to violate the Constitution with respect to anyone who has not yet sued”. What she probably meant is the government cannot mass transact the liberty interests of individuals without due process by changing the interpretation of law on their common facts. Like suppose they all got a 1-day sentence. And sometime later, the government says “1 day” now means 1 day to 100 years. The individuals do not have to individually sue after this happens, to reverse the transactions making their sentences 100 times longer. The government has to ask permission for each individual sentence-increasing transaction.

The government added another twist by applying this to people who have not been born yet, and so have not been made citizens yet, to have this taken away. So the facts that will be true are known, and the liberty interests they will enjoy when they are born, are known. But having not yet been born, they have not yet been given something which will then be taken away. So the government is transacting the liberty interests people will have without due process, based on the technicality of being inside someone’s womb.

Barrett said “federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them”. By “resolve cases and controversies” Barrett means separation of powers and due process. This is a specific kind of interaction that is not purely oversight.

Courts are not so perfect that you can get better results by having courts tell the executive branch what to do. What is better than the imperfection of either side is separation of powers. That is what the law calls for.

Jackson said “courts must have the power to order everyone (including the Executive) to follow the law — full stop.” What Jackson might have meant, is that courts can force the executive branch to go through whatever process is due, before infringing liberty interests.

Barrett said “the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation”. Yeah no kidding, you are all talking about due process, separation of powers, not “unbridled” process for either side.

The judiciary does have (unbridled?) authority to require process or separation of powers for government to violate or transact individual liberty interests. Legislators have decided it is appropriate and effective for courts to check the executive employees in this area.

All these justices have been tricked that the issue is something about arguing what the law says, and making the government interpret the law correctly, rather than due process.

Jackson might have said any time the government violates liberty interests, and a judicial process with separation of powers makes it more likely the law would be followed rather than some other agenda, and it is necessary to do this in time to prevent unrecoverable harm, due process empowers and mandates courts to enforce that process. A law against nationwide injunctions violates substantive due process if it prevents this. If judicial process with separation of powers can prevent otherwise unrecoverable harm to liberty interests by making it more likely law will be followed than some other agenda, due process empowers and mandates courts to improve executive decisions by interfering with them.

The question is whether the executive branch can transact liberty interests for large classes of people at once by changing the law that applies to their common facts. Or whether courts can enjoin this universally, to make the government either have an individual process for each affected individual, or somehow go through a court or legislative process to change the law.

Justice Jackson is correct in realizing that not stopping the executive branch writing legislation creates “a zone of lawlessness within which the Executive has the prerogative to take or leave” liberty interests without process. But Jackson did not express this well, and Barrett therefore didn’t address the trick being used to violate due process.

Changing or reinterpreting the law to transact individual liberties without individual cases infringes rights without due process. The Supreme Court should at least declare that as a general process, this is illegal.

If nothing can stop this practice, if our government contains no mechanism to check this and voters may want it — if a court can’t universally enjoin the government from transacting liberty interests without due process, to effectively turn every criminal case into a habeas petition instead of a jury trial or even a Fourth Amendment hearing — then Jackson is correct that dictators can do whatever they want needing only guns and propaganda.

If the executive branch can write its own laws, and there is no practical way to defend our form of government or at least our individual liberties within the myopic perceptions of judges, Jackson is right that “Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.”