A divided Supreme Court vacated temporary restraining orders issued by a federal judge in Washington, D.C., that had halted certain deportations under the Alien Enemies Act. The court split 5-4, with Republican appointees in the majority and Trump appointee Amy Coney Barrett dissenting alongside the court’s three Democratic appointees.
The majority framed the matter as a mere procedural disagreement, but dissenting justices cited loftier issues at play, with Justice Sonia Sotomayor highlighting potential “life or death consequences.”
In an unsigned “per curiam” ruling for the court, the majority said detainees must bring their challenges in habeas corpus proceedings and must do so where they are confined. “The detainees are confined in Texas, so venue is improper in the District of Columbia,” the majority said.
The majority also said detainees under the act “must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” The majority emphasized that it wasn’t ruling on the government’s interpretation of the act itself.
The American Civil Liberties Union’s Lee Gelernt, who was counsel of record at the Supreme Court for the plaintiffs who brought the case, emphasized the due process aspect of the ruling. “The critical point of this ruling is that the Supreme Court said individuals must be given due process to challenge their removal under the Alien Enemies Act. That is an important victory,” he said.
Writing a dissent joined by the two other Democratic appointees and partly by Barrett, Sotomayor called the majority’s legal conclusion “suspect.” She said the court granted the government “extraordinary relief” without mentioning “the grave harm Plaintiffs will face if they are erroneously removed to El Salvador or regard for the Government’s attempts to subvert the judicial process throughout this litigation.”
The majority chided the dissenters’ “rhetoric” and said it agrees the detainees are entitled to notice and an opportunity to challenge their removal and that “the only question is which court will resolve that challenge.” Similarly, Justice Brett Kavanaugh (who was in the majority) added a concurring opinion to emphasize that “all nine Members of the Court agree that judicial review is available. The only question is where that judicial review should occur.”
But on the prospect of life-or-death stakes, Sotomayor wrote, “Individuals who are unable to secure counsel, or who cannot timely appeal an adverse judgment rendered by a habeas court, face the prospect of removal directly into the perilous conditions of El Salvador’s CECOT, where detainees suffer egregious human rights abuses.” She raised the concern of people being mistakenly deported and then the government not trying to get them back, which is at issue in another case pending before the justices.
Justice Ketanji Brown Jackson added her own dissent to lament the majority’s actions in the case, in which, as she put it, President Donald Trump “has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning.”
The Trump administration sought high court intervention in litigation over the 1798 law, which Trump invoked to summarily deport alleged Venezuelan gang members on flights to El Salvador. The law has been invoked just three previous times in the nation’s history, all during declared wars.
On March 15, U.S. District Judge James Boasberg issued temporary restraining orders to halt certain deportations under the act pending further litigation. A divided federal appellate panel in Washington, D.C., declined to halt Boasberg’s orders, and the government appealed to the justices. “This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country — the President, through Article II, or the Judiciary, through TROs,” the administration wrote, referring to temporary restraining orders. “The Constitution supplies a clear answer: the President. The republic cannot afford a different choice,” it said in the March 28 application to Chief Justice John Roberts, who handles emergency litigation from Washington, D.C. Opposing the government’s application, the plaintiffs who brought the lawsuit argued that the administration isn’t entitled to emergency relief. Opposing the government’s application, the plaintiffs who brought the lawsuit argued that the administration isn’t entitled to emergency relief. They noted that the government can still remove people under other legal authorities besides the Alien Enemies Act. And they said that without Boasberg’s temporary orders in place, the plaintiffs “will suffer extraordinary and irreparable harms — being sent out of the United States to a notorious Salvadoran prison, where they will remain incommunicado, potentially for the rest of their lives, without having had any opportunity to contest their designation as gang members.” Boasberg has separately been examining whether Trump officials violated his orders. The government has questioned the Obama-appointed judge’s authority and has maintained that it technically didn’t violate his orders in any event. But the plaintiffs said officials clearly violated his orders when they didn’t even attempt to return individuals on planes, despite Boasberg’s unambiguous directive to do so and having the ability to do so. The judge is poised to rule on the matter in the coming days after a hearing last week at which he had a hard time getting answers from the government about its compliance with his orders. The government’s citation of national security concerns comes amid the “Signalgate” scandal, in which top officials mistakenly disclosed sensitive military information, as well as the government’s admission in another case that it made an “administrative error” in removing an individual to a Salvadoran prison who wasn’t supposed to be sent there, which Sotomayor cited in her dissent. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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