The Supreme Court will allow Donald Trump to continue summarily deporting alleged Venezuelan gang members under a centuries-old wartime law after the administration had already deported dozens of immigrants to a notorious El Salvador prison.
A divided court on Monday night agreed to lift a judge’s order that temporarily blocked the president’s use of the Alien Enemies Act to swiftly deport people from the U.S. while a legal challenge plays out. But the justices said the immigrants are “entitled to notice and an opportunity to challenge their removal” in front of a judge.
“The only question is which court will resolve that challenge,” they wrote.
Those challenges must take place in Texas, not in Washington, D.C., according to the unsigned order.
Conservative Justice Amy Coney Barrett joined the court’s liberal justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor in dissent.
The 5-4 decision — with the court’s women dissenting — follows a federal appeals court’s rejection of the president’s attempt to throw out a ruling from District Judge James Boasberg. The judge is also weighing whether to hold government officials in contempt for allegedly defying his court orders to return deportation flights to the United States before dozens of Venezuelan immigrants landed in a Salvadoran prison facing the prospect of indefinite detention.
Flights were in the air on March 15 when Boasberg ordered the administration to turn the planes around after a lawsuit from the American Civil Liberties Union challenging their clients’ removal. The judge wants to know when government lawyers relayed his verbal and written orders to administration officials and who, if anyone, gave the flights a greenlight despite his orders.
In his proclamation invoking the Alien Enemies Act for only the fourth time in U.S. history, Trump stated that “all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua], are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
The administration has since admitted in court filings that “many” of the people sent to El Salvador did not have criminal records, and attorneys and family members say their clients and relatives — some of whom were in the country with legal permission and have upcoming court hearings on their asylum claims — have nothing to do with Tren de Aragua.
Attorney General Pam Bondi called the Supreme Court’s decision on Monday a “landmark victory for the rule of law.”
An “activist judge in Washington, D.C. does not have the jurisdiction to seize control of President Trump’s authority to conduct foreign policy and keep the American people safe,” she said. “The Department of Justice will continue fighting in court to make America safe again.”
The Alien Enemies Act — which was most recently previously used to round up Japanese Americans in internment camps during World War II — grants the president authority to remove “alien enemies” during wartime or a “predatory incursion or invasion” by a foreign power. The administration alleges that the Venezuelan government has directed Tren de Aragua in the United States.
Appeals court judges said Trump “plucks the third-order usage” of the word “invasion” to justify summary deportations, and argued that immigration alone also does not constitute a “predatory incursion.”
Sotomayor, writing in the Supreme Court’s dissent, said the majority’s “legal conclusion is suspect” and made a decision “without mention of 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.”
“What if the Government later determines that it sent one of these detainees to [El Salvador’s megaprison] in error? Or a court eventually decides that the President lacked authority under the Alien Enemies Act to declare that Tren de Aragua is perpetrating or attempting an ‘invasion’ against the territory of the United States?” she asked.
“The Government takes the position that, even when it makes a mistake, it cannot retrieve individuals from the Salvadoran prisons to which it has sent them,” she said. “The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise.”
Sotomayor said the administration’s conduct in this case “poses an extraordinary threat to the rule of law.”
“That a majority of this Court now rewards the Government for its behavior with discretionary equitable relief is indefensible,” she wrote. We, as a Nation and a court of law, should be better than this,” she emphasized.
