The Supreme Court on Friday delivered yet another blow to President Donald Trump’s attempts to deport immigrants by exerting a wartime emergency power, ordering the administration to stop the rushed process it keeps trying to use to remove migrants it deems “alien enemies” without offering them an opportunity to challenge that designation.
The move comes a month after the court temporarily halted government rendition flights that cite the 1798 Alien Enemies Act to accuse migrants of being Venezuelan gang members, before sending them to a Salvadoran prison accused of torturing inmates.
Friday’s opinion listed no author and was ascribed to the entire court, but only two conservative jurists on high court dissented: Justices Samuel Alito and Clarence Thomas.
The order is sure to disappoint human rights activists and legal scholars who have criticized the federal government’s use of an aged national security doctrine to deport migrants because the Supreme Court did not altogether prevent Trump from using the Alien Enemies Act. But justices demanded that accused migrants get more time to challenge their removals.
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“We recognize the significance of the government’s national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution. In light of the foregoing, lower courts should address AEA cases expeditiously,” the court ordered.
Immigration law enforcement is also free to continue deporting people under standard federal laws, the high court said.
Justice Brett Kavanaugh clarified his position in a concurrence, writing that “the injunction simply ensures that the judiciary can decide whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act before they are in fact removed.”
The Supreme Court has increasingly shown concern over Trump’s recalcitrant response to judicial orders. Friday’s opinion criticized the way federal agents — who were already commanded by trial judges and appellate courts to offer detainees a fair opportunity to dispute their pending removals — instead tried to whisk them to Central America on April 18, only to be temporarily halted by the high court.
Before courts intervened, Immigration and Customs Enforcement agents handed jailed migrants a typo-riddled form that miscited the law and claimed detainees had no rights to even question their expulsion from the U.S. And yet after courts commanded federal agencies to provide proper notice, human rights lawyers reported that migrants were handed forms in English that still did not indicate they had a right to file what are called habeas corpus lawsuits — and were told deportations were merely hours away.
“In order to ‘actually seek habeas relief,’ a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief,” the justices stated in Friday’s order.
“Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster,” they added.
The Supreme Court sent the case back to the Fifth Circuit Court of Appeals — which reviews cases in Mississippi, Louisiana and Texas — to consider the migrants’ pleas and clarify exactly what “notice is due.”
Justices also revealed a worry that if they didn’t act quickly enough, the Trump administration might have exiled migrants to a foreign nation only to then feign that it is powerless to return them. They specifically pointed to their concern of a repeat of the situation involving Kilmar Armando Abrego Garcia, who remains in El Salvador despite a Maryland federal judge’s order demanding that the government bring him back.
Alito argued in his dissent that the Supreme Court didn’t even have jurisdiction to hear the case. He and Thomas agreed that the matter should have remained before the appellate court in New Orleans, even if the court was slow to act. Alito also questioned the ability for migrants to band together to challenge their removals in unison, writing that “it is doubtful that class relief may be obtained in a habeas proceeding.”
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Jose Pagliery is a reporter at NOTUS.
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