Welcome back, Deadline: Legal Newsletter readers. The Supreme Court confronted President Donald Trump’s second-term agenda on several fronts this week. The results were mixed, as the justices rejected some of the administration’s most extreme immigration stances while supporting the president’s power in other areas, including his ability to fire independent federal agency members.
The court’s rejection of Trump’s most aggressive arguments came in appeals over the Alien Enemies Act and the government’s admittedly wrongful deportation to El Salvador of Kilmar Abrego Garcia. In both cases, the court affirmed at least some measure of legal constraint on the government’s deportation efforts — though both cases also prompted separate writings from the court’s Democratic appointees, who highlighted the potential for mischief left open to administration lawyers who’ve been taking hostile litigation positions.
In the Alien Enemies Act case on Monday, the majority vacated U.S. District Judge James Boasberg’s temporary restraining orders that had blocked deportations of alleged Venezuelan gang members to El Salvador. The court said detainees must bring their challenges in habeas corpus proceedings where they’re confined (which isn’t Washington, D.C., where Boasberg presides). Crucially, the court said people need notice that they’re subject to removal and given a chance to fight it.
Justice Sonia Sotomayor deemed “suspect” the majority’s habeas corpus conclusion. While all nine justices agreed that due process is needed, she said making people file individual habeas challenges risks “life or death consequences.” Her dissent was joined in full by her two fellow Democratic appointees and, notably, in part by Trump appointee Amy Coney Barrett, though Barrett didn’t sign on to the most pointed parts of Sotomayor’s dissent (including the “life or death consequences” section).
Lawyers for detainees quickly filed new suits and won temporary relief in New York and Texas — with a Trump-appointed judge granting relief in the latter state. Notably, they lodged their new habeas claims on behalf of classes of plaintiffs, not just individuals, which could mitigate some of Sotomayor’s concerns. But we’re only at the initial phase of these new cases that could be resolved by the justices, too.
In the Abrego Garcia case on Thursday, the high court rejected the notion that there’s nothing the judiciary can do in the face of the government’s conceded “error” in sending the Maryland man to El Salvador. U.S. District Judge Paula Xinis had ordered officials to “facilitate and effectuate” Abrego Garcia’s return, and the justices approved her order — sort of. The majority said the Obama appointee was within her rights to order facilitation but it cast doubt on her power to order effectuation. It sent the case back to Xinis for her to clarify her command, while Sotomayor again wrote for the Democratic appointees to say that they would’ve let Xinis’ order go forward undisturbed and that the trial judge “should continue to ensure that the Government lives up to its obligations to follow the law.” Barrett didn’t join that one.
Xinis quickly clarified her order to “DIRECT that [government] Defendants take all available steps to facilitate the return of Abrego Garcia to the United States as soon as possible.” She demanded information about his status and the plans to get him back. But the government said it couldn’t give her the details requested on the “impracticable deadline” she set “hours after the Supreme Court issued its order.” Officials also tried to delay a hearing she set for Friday, which Xinis declined to do. At that hearing, the reportedly exasperated judge told officials to start giving her daily updates.
Abrego Garcia’s lawyers blasted the government’s tactics, writing to Xinis ahead of the hearing that officials continue “to delay, obfuscate, and flout court orders, while a man’s life and safety is at risk.” With the case’s fate uncertain at the time of this writing, it remains to be seen when — and even whether — the Supreme Court’s order will have the effect of righting the government’s admitted wrong. Trump officials had more straightforward SCOTUS wins in other cases this week. Over dissent from Sotomayor and Justice Ketanji Brown Jackson, the court on Tuesday granted the administration’s urgent bid to halt a California judge’s order reinstating thousands of fired federal employees. The following day, Chief Justice John Roberts temporarily halted orders that reinstated independent agency members that Trump had sought to fire. Roberts’ action came in an appeal implicating the 1935 Humphrey’s Executor precedent that has long protected agency independence. In the application that Roberts temporarily granted Wednesday pending further word from the court, Trump’s solicitor general, John Sauer, suggested the justices take up the issue “in a special May sitting this Term.” The court’s arguments typically wrap up in April, so we’ll see if the court wants to offer the special accommodation suggested by Sauer, who argued the immunity case on Trump’s behalf (more on that case in this week’s “Ask Jordan”). Have any questions or comments for me? Please submit them on this form for a chance to be featured in the Deadline: Legal blog and newsletter.
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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