Trump Revived the Law Used to Intern Japanese Americans, and SCOTUS Let Him

The Supreme Court made two key initial procedural rulings on Monday in cases related to the Trump administration’s aggressive efforts to grease the wheels of mass detention and mass deportation primarily through outsourcing to El Salvador’s Centro de Confinamiento del Terrorismo (CECOT) prison, which is known worldwide for its flagrant human rights abuses.

In its procedural ruling on Trump v. J.G.G., the court upheld the Trump administration’s rhetorical reliance on the Alien Enemies Act to justify the transfers but required it to comport with the barest minimums of constitutional “due process” through individualized habeas corpus proceedings in largely hostile courts closer to the location of the detention centers where those targeted by the act are likely being held. The Supreme Court’s majority opinion was simultaneously outrageous and perfunctory, and procedural challenges are likely to continue.

Justice Sonia Sotomayor penned what will come to be recognized as a historic 17-page dissent, expressing the arguments and sounding the warnings that should have served as a basis for the court’s ruling. Speaking as the court’s only Puerto Rican and first Latina member, Sotomayor offered a lament for how the Supreme Court has squandered its voice at this crucial historical moment. There is poetry latent in her scathing critique of the court’s limitations. At one moment in her dissent, she argued:

The Government takes the position that, even when it makes a mistake, it cannot retrieve individuals from the Salvadoran prisons to which it has sent them.The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise.

The J.G.G. decision revives both the notorious Korematsu case, which upheld the mass internment of Japanese Americans during World War II, and the 18th-century Alien Enemies Act (AEA), upon which their internment was based. The Supreme Court’s initial procedural ruling this week legitimized the AEA through the back door, without addressing any of the pressing substantive issues raised by its current weaponization by the Trump administration, as Justice Ketanji Brown Jackson noted in her own dissent in concurrence with Sotomayor.

Kilmar Abrego García, a Maryland man who is a legal U.S. resident, is a Salvadoran immigrant with no criminal record and no gang membership, who was “accidentally” deported to the CECOT prison in El Salvador. In the past, he fled from systematic persecution in El Salvador by the kinds of gang members he is now surrounded by in detention. The Trump administration has conceded that his “deportation” to El Salvador was the product of an “administrative error.” Yet at the same time it has continued to insist that it has neither the power nor the inclination to return him to the U.S., despite this grievous, potentially life-threatening mistake.

The Supreme Court’s ruling on Monday breathed artificial life into one of the court’s most notorious decisions in the 1944 Korematsu case, which upheld the legality of the mass detention of over 120,000 people of Japanese origin in the U.S in response to Pearl Harbor. In so doing, the court has exercised what can only be described as a new kind of zombie jurisprudence, while leaving key threshold questions utterly and deliberately unexamined. This is evidently the Supreme Court’s way of ducking, for now, a more fundamental clash with the Trump administration’s increasingly evident intent to undermine judicial control and even review of its most dangerous policies.

Key unresolved questions include whether the Alien Enemies Act is itself constitutional or not, whether it should be for the first time activated in peacetime — not against the citizens of a country with which the U.S is at war, but against a criminal gang and its alleged members, whom the administration has deemed “terrorists” and is depriving of due process rights in the name of “national security.” Sound familiar? El Salvador’s megaprison is, for these purposes, in effect the new Guantánamo (or another equivalent “black site”), while the U.S base on illegally occupied Cuban territory continues to gear up for increased occupancy.

The Supreme Court’s majority also failed to place limits on invocations of expansive executive power along these lines, which might for example include additional executive orders that seek to expand the targets of the Alien Enemies Act — or equivalent provisions — beyond their current focus (alleged Venezuelan members of the Tren de Aragua gang) to other groups whom the president wishes to repress. Many more executive orders may be signed with even lesser transparency, and ever larger potential reach.

This implicit slippery slope effect is already evident in what has unfolded with those hundreds of young men — primarily Venezuelan, but also of Salvadoran origin — on the three “deportation” flights on March 15 that laid the groundwork for both of Monday’s Supreme Court cases. No evidence has been made public that confirms that any of these young men are or were ever members of the Tren de Aragua gang or its Salvadoran equivalents, and most do not have criminal records anywhere.

Most of those currently detained in hellish conditions in El Salvador have committed no recognizable offense, except that they were primarily young Venezuelan men who could be targeted in the dark of night — “taken off the streets, forced onto planes, and confined to foreign prisons” in Sotomayor’s words — because Donald Trump and Marco Rubio said so.

As Justice Sotomayor has eloquently argued, there is in fact no material force in place that prevents the Trump administration from extending the logic of its current sweeps against alleged Venezuelan or Salvadoran gang members — or holders of green cards or student visas like Mahmoud Khalil and Rümeysa Öztürk whose speech offends the Trump administration’s sensibilities — to others, including U.S. citizens. This is especially true under an administration that is actively seeking to redefine and restrict birthright citizenship and voting rights, and that has been acting in bad faith in cases like these, seeking to both undermine and elude judicial review of its arbitrary actions.

“The Government’s conduct in this litigation poses an extraordinary threat to the rule of law,” Sotomayor wrote in her disssent. “That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this.”

And yet cases like this also remind us that Sotomayor’s faith may be misplaced. Many have forgotten cases like those of Paul Robeson or W.E.B DuBois during the McCarthy era — or later Muhammad Ali — whose passports were confiscated and whose right to travel outside the U.S. was nullified for supposed “disloyalties” equivalent to those weaponized today by Rubio, at Trump’s behest.

Poets tend to be better at cultivating such memories. Bertolt Brecht once asked himself, amid his own forced exile from Nazi Germany, “In the dark times / will there also be singing? / Yes, there will also be singing. / About the dark times.”

A writer whose work carries on this spirit of resistance today is the poet Martín Espada (honored with the National Book Award for Poetry in 2021), whose extraordinary new book A Jailbreak of Sparrows is rooted in the revolutionary rhythms of the liberation struggles of Puerto Rico. Espada’s poetry is also imbued with his background as a lawyer, and like Sotomayor, is grounded in his upbringing in New York’s Puerto Rican community, as part of the same generation. Sotomayor has written eloquently about how these origins decisively shaped her experiences and approach as a student, lawyer, and ultimately federal judge and Supreme Court Justice.

Espada reminds us in concrete lyrical detail how Trump’s dehumanization of migrants through the rhetoric of “invasion” laid the groundwork for the El Paso Massacre in August 2018 and for police killings like that of Mario González in Alameda, California, in April 2021. He also reminds us of the human costs of the McCarthyist persecution of dissidents both in Puerto Rico and on the mainland through the cases of renowned poets such as Juan Antonio Corretjer and William Carlos Williams.

Espada tells us too, in the book’s stunning title poem, about how U.S. Thunderbolt fighter planes sought to bomb into submission the Puerto Rican mountain town of Utuado — his father’s and grandmother’s birthplace — in the wake of the October 30, 1950, pro-independence uprising led by the island’s nacionalistas:

In towns with names that fly, Jayuya, Arecibo, Naranjito, Utuado, they lined up

against the walls, fingers woven behind their heads, bayonets sniffing their ribs,

taken by trucks to jails with names that stop the tongue: La Princesa in a land

where the princess waves from a float, Oso Blanco in a land without white bears.

The poet who knew the room of stone returned with a face of stone. The poet new

to the room of stone scribbled on stone whatever the voices bellowed in his ear.

But it all began with the words that were forbidden-

“La Ley de la Mordaza, the Law of the Muzzle years ago,confiscating the ink of presses that stamped the page with the words colonialism

and independence, empire and political prisoner, clapping handcuffs on anyone

who sang verses that flew like a jailbreak of sparrows. The flag of Puerto Rico,

fanning a grave in the heat or asleep in a closet between the sheets, would

now become the prosecutor’s proof, good for ten years in a room of stone”

Together the combined eloquence and depth of Sotomayor’s emerging jurisprudence of resistance and Espada’s life-long praxis of the poetry of liberation provide us with a basis for the kind of critical reflection and engagement we need, from below, in response to the onslaught that seeks to erode and nullify our rights, and the channels through which we express them. Today, on campuses and in communities throughout the country, it is words like those evoked by Espada and their equivalents — or those that resonate with Sotomayor’s warnings — that could lead to our targeting, as if we were “alien enemies.” Espada and Sotomayor, together, write for us.