Supreme Court's late-night order barring deportation was 'extraordinary in many ways;' what did Alito say?
Immigrants deported from the United States arrive in Guatemala on a ICE deportation flight during President Donald Trump’s first term in February 2017. He has pledged to massively increase deportations during his second term. (Photo by John Moore/Getty Images)
The U.S. Supreme Court acted quickly after the American Civil Liberties Union filed an emergency application Friday evening that sought to block what appeared to be the imminent deportation of its clients.
In an order issued at about 1 a.m. Saturday, the Supreme Court blocked the deportation of detainees covered in a would-be class action lawsuit seeking to protect them from removal without due process to a prison in El Salvador in Central America, report Law.com and the New York Times.
The Trump administration had sought to deport the detainees under the Alien Enemies Act of 1798, citing alleged gang membership in a Venezuelan gang that it has designated as a foreign terrorist organization.
According to the New York Times, the order “was extraordinary in many ways. Perhaps most important, it indicated a deep skepticism about whether the administration could be trusted to live up to the key part of an earlier ruling after the government had deported a different group of migrants to a prison in El Salvador.”
That earlier, April 7 Supreme Court decision said detainees challenging deportations under the Alien Enemies Act are entitled to a notice that they are subject to removal under the law “within a reasonable time and in such a manner as will allow them to actually seek habeas relief.”
The April 19 order was also unusual because the Supreme Court did not wait for a ruling by a federal appeals court and did not ask for a response to the emergency application, according to the New York Times. The Supreme Court instead directed the government to file a response “as soon as possible” after the 5th U.S. Circuit Court of Appeals at New Orleans acts in the case.
It would not have been so unusual if a Supreme Court justice overseeing the 5th Circuit had issued an administrative stay pending further action, according to the New York Times. But Justice Samuel Alito is responsible for the 5th Circuit, and “he was apparently not inclined to issue a stay on his own.”
Indeed, Alito dissented from the high court’s order, joined by Justice Clarence Thomas. The dissent was published after the Supreme Court’s order, which is also unusual.
Alito said the Supreme court “hastily and prematurely granted unprecedented emergency relief.” It wasn’t clear that the Supreme Court had jurisdiction, Alito said, and the high court acted without hearing from the government.
“In sum,” Alito wrote, “literally in the middle of the night, the court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order.”
Still unresolved is the merits question of whether the Trump administration has the power to use the Alien Enemies Act to deport the alleged gang members, according to Steve Vladeck, a professor at the Georgetown University Law Center, who commented in his One First newsletter.
Vladeck thinks that there are strong arguments that the act cannot use the statute for removals, “and a court so holding would provide a substantive impediment to any of the procedural games the government is trying to play,” he wrote.
“In that sense, it seems a little weird that we’re going through all of this effort to require process before the government can use a substantive authority it probably doesn’t have,” Vladeck said. “Maybe the reason the justices are focusing on the procedures is because they’re not sure what they think of the merits. But the sooner the merits are resolved, it seems to me, the better.”
The case is A.A.R.P. v. Trump.
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