A new memorandum from Immigration and Customs Enforcement (ICE) grants certain individuals facing deportation only six hours’ notice to contact an attorney, a policy that appears to contradict fundamental principles of due process. The directive follows a series of conflicting Supreme Court rulings on the matter, creating a climate of legal uncertainty.
For 80 years, the Supreme Court has held that for due process to be served, any notice of legal action must be “reasonably calculated” to inform individuals of the jeopardy they face and provide a meaningful “opportunity to present their objections.” The Court specified that a “mere feint is not due process.” Critics argue the new ICE policy is precisely such a feint.
This legal ambiguity stems from the Supreme Court’s recent actions. In an April ruling in Trump v. J.G.G., the Court unanimously affirmed that individuals in deportation proceedings are entitled to due process and the ability to challenge their removal. The decision stated that notice must be provided “within a reasonable time and in such a manner” that allows them to seek relief before deportation occurs.
However, that ruling was issued via the Court’s “shadow docket,” which handles emergency applications, often with limited transparency and legal reasoning. The lack of clarity from this process was highlighted in late June in the case D.H.S. v. D.V.D. Without offering any explanation, the Supreme Court nullified a lower court’s injunction that had halted the deportation of a group of detainees to South Sudan. The lower court had found the detainees were entitled to challenge their removal, but the Supreme Court’s order allowed the deportations to proceed.
In a blistering dissent to the June order, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote that the due process clause represents “the principle that ours is a government of laws, not of men.” She argued the majority was “rewarding lawlessness” and undermining this foundational principle.
The unexplained ruling in D.H.S. v. D.V.D. appears to have paved the way for the new ICE directive, particularly concerning the deportation of individuals to “third countries”—nations other than their country of origin where they may face harm. By intervening without justification, the Court’s majority seemed to authorize deportations with minimal procedural safeguards.
The new ICE memorandum will undoubtedly face immediate court challenges, which will likely force the Supreme Court to clarify its stance. A definitive ruling would need to confirm what due process has required for decades: more than a six-hour window for an individual to defend against the profound consequence of deportation.
