The Supreme Court on Tuesday heard from human rights activists opposing the government’s expeditious expulsions of immigrants to a Salvadoran prison, hinting at the broader battle to come over what advocates warned could “quickly become a limitless source of power” for President Donald Trump.
The legal challenge is relatively narrow, as justices consider whether to lift a trial judge’s temporary restraining order forbidding the Trump administration from rapidly rounding up migrants deemed “enemy aliens” without a trial.
But the American Civil Liberties Union’s 44-page filing on Tuesday touched on the actual merits of the case, providing a preview over what could be the most significant constitutional conflict yet of Trump’s second presidency.
The Supreme Court may now review the way federal law enforcement put together an operation last month that claimed to target only members of Venezuela’s notorious Tren de Aragua gang — when in actuality it also included a Venezuelan TV makeup artist, Salvadorans, and one man whom the government belatedly admitted had legal protections allowing him to remain in the United States.
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“Indeed, if mass migration or criminal activities by some members of a particular nationality could qualify as an ‘invasion,’ then virtually any group, hailing from virtually any country, could be deemed enemy aliens,” ACLU lawyers wrote.
D.C. Chief Judge James Boasberg has extended his initial pause on these flights to April 12, and the region’s federal appellate court upheld his ruling. The Trump administration has now elevated the matter to the high court, even though the class action lawsuit is in its very first stage. Already, government lawyers have taken the hardline stance that courts can barely step in the way.
The Department of Justice is defending the new policy, arguing that “detentions and removals under the Alien Enemies Act are so bound up with critical national-security judgments that they are barely amenable to judicial review at all.”
Documents filed in court over the weekend offered a glimpse into the Trump administration’s implementation of the 1798 Alien Enemies Act and the way migrants were denied any sense of due process. One government form, meant to serve as an official “notice to alien enemy,” lays out how federal agents are empowered to unilaterally determine a person’s fate without any judicial intervention.
“I am a law enforcement officer authorized to apprehend, restrain, and remove Alien Enemies,” it states. “You are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal.”
The document goes on to cite the wrong criminal statute, saying that “until you are removed from the United States, you will remain detained under Title 40,” incorrectly referring to a chapter of the U.S. Code that deals with the management of federal buildings and procurement. The document’s authors meant to point to Title 50, which regulates the removal of so-called “enemy aliens” during wartime. It also misspells the body of law, referring to the “Unite States Code.”
Joseph Gordon, a Philadelphia immigration lawyer, called the typos and apparent errors an “extra bit of incompetence and sloppiness.”
Tuesday’s filing marked the first response by the ACLU, which argued that judges can’t simply let the executive branch operate without bounds. Lawyers there said the high court “has repeatedly refused to grant the president a blank check as commander-in-chief.”
They told the Supreme Court that if Trump “were allowed to designate any group with ties to officials as a foreign government, and courts were powerless to review that designation, any group could be deemed a government, leading to an untenable and overbroad application of the [Alien Enemies Act].”
“If the President were to have unreviewable authority to designate migration or criminal acts ‘invasions’ or ‘predatory incursions,’ the act would quickly become a limitless source of power,” they wrote.
DOJ lawyers have already made clear to federal judges at every step that the Trump administration plans to immediately restart rapid removal flights as soon as the court-ordered pause expires. But they’ve also maintained that the government continues to identify and detain people under these wartime powers and could have them deported by invoking other immigration laws.
Some legal experts say the Trump administration is reaching for any justification to continue its vast deportation plans, pointing to the way Immigration and Customs Enforcement agents are similarly floating “terrorism” accusations when targeting college students over their protests of Israel’s war on Gaza — and just on Monday admitted to mistakenly deporting the man with protected legal status to El Salvador.
Lee Kovarsky, a law school professor at the University of Texas, said he expects federal agents to “remove as many Venezuelans as possible as quickly as possible,” even if that means violating the law.
“I also think the administration will deliberately misconstrue judicial orders to permit removal that the orders were meant to forbid,” he told NOTUS.
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Jose Pagliery is a reporter at NOTUS.
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