The Supreme Court extended its order temporarily blocking the Trump administration from swiftly deporting alleged Venezuelan gang members being detained in portions of Texas.
Over the dissents of conservative Justices Clarence Thomas and Samuel Alito, the emergency decision prevents authorities from removing the migrants under the Alien Enemies Act as a legal challenge proceeds, a win for the American Civil Liberties Union (ACLU), which is suing on the migrants’ behalf.
But the justices declined the ACLU’s additional request to leapfrog the lower courts to immediately take up the issue of whether President Trump can invoke the rarely used law outside of wartime.
Instead, the case will return to the lower courts alongside a handful of other challenges being brought by the civil rights group around the country. The issue could ultimately return to the justices, who directed the lower courts to act “expeditiously.”
In its opinion, the justices blasted the Trump administration for giving as little as 24 hours notice before whisking migrants away to a foreign prison, from which the White House argues they are unable to secure their return.
“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,” the court wrote in its unsigned opinion.
“But it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case. We remand the case to the Fifth Circuit for that purpose,” the opinion continued.
Enacted in 1798, the Alien Enemies Act enables authorities to summarily deport migrants during a declared war or “invasion” by a foreign nation. The law has been leveraged just three previous times, all during wars, but Trump contends he can use it because the Venezuelan gang Tren de Aragua is effectively invading the U.S.
That argument has been rejected by several courts, including one Trump appointee. However, last week another Trump judge sided with the administration’s arguments that the AEA can be used to remove members of Foreign Terrorist Organization — a designation Trump has made for Tren de Aragua.
The first wave of deportations under the law took place March 15, when more than 100 individuals were sent to a Salvadoran mega prison. Some individuals contest any gang affiliation.
When the ACLU’s first challenge reached the Supreme Court’s emergency docket in late March, the justices ruled that the migrants must be given notice and opportunity to be heard before the administration deports them. It also required migrants to file such challenges from where they were being detained, sparking a new wave of individual cases.
Last month, the ACLU rushed back to the Supreme Court, raising concerns that a new group of migrants were being bused, presumably to an airport to be imminently deported to El Salvador.
The ACLU argues the stakes of such removals couldn’t be higher. In the case of a mistakenly deported Salvadoran man removed under immigration authorities, the Trump administration has argued they cannot secure the return of him or any other migrant once they’ve been turned over to the custody of another country.
In a remarkable move, the Supreme Court intervened in the middle of the night to block the new round of deportations until the court could decide what to do, even as the Trump administration insisted no flights were scheduled for the next day.
The new ruling extends that order, blocking Alien Enemies Act deportations for those detained in the Northern District of Texas until any appeals are resolved.
“The Government may remove the named plaintiffs or putative class members under other lawful authorities,” the court’s order reads.
It comes as the ACLU accuses the administration of defying the Supreme Court’s original order to provide due process by giving migrants 24 hours or less notice that they may be deported under the law, providing notification only in English while failing to disclose they may be sent to a notorious Salvadoran prison.
Solicitor General D. John Sauer urged the justices to deny the ACLU’s request and let the case proceed through the normal process.
“No court has passed on the legal adequacy of the government’s notice procedures — nor has the government had a chance to defend them. This Court should not make those determinations in the first instance,” Sauer wrote in court filings.
The ACLU, however, said it will likely be forced to continue filing emergency appeals “again and again,” urging the justices to leapfrog a lower court and take up now whether Trump can legally invoke the Alien Enemies Act out of wartime.
“Applicants recognize that this is an extraordinary request given that the district court has not yet ruled on the merits, but believe it is appropriate in light of the government’s actions,” ACLU attorney Lee Gelernt wrote in court filings.
