Supreme Court maintains block on Trump's use of Alien Enemies Act for deportations
A divided Supreme Court on Friday kept a block on the Trump administration’s use of a rarely invoked wartime power to deport migrants in Northern Texas and said administration officials had not given those targeted for removal last month sufficient time to challenge their deportations.
The majority called the detainees’ interests “particularly weighty” because of the risk of removal to a notorious megaprison in El Salvador where detainees could face indefinite detention.
President Donald Trump’s use of the Alien Enemies Act of 1798 to target a Venezuelan gang is one of the most controversial parts of his mass deportation efforts, which are at the center of increasingly tense standoffs between his administration and the courts.
The justices had told the administration in early April that it must give targeted detainees sufficient notice “within a reasonable time and in such a manner” that they can challenge their removal in the jurisdictions where they are being held. The high court intervened again a week later, issuing an extraordinary middle-of-the-night order to temporarily halt deportations of a group of migrants in Northern Texas. Lawyers for those migrants said they had been loaded onto buses and were at risk of imminent removal to El Salvador.
In their order Friday, the justices reinforced in much stronger language the importance of courts ensuring a fair or due process before deportation and alluded to the Trump administration’s handling of Kilmar Abrego García, the Maryland man wrongly deported and now imprisoned in El Salvador despite a 2019 court order barring such action.
“A detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief,” according to the unsigned order from a majority of justices.
The roughly 24 hours notice provided to the detainees in Northern Texas “devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster,” the order states.
Conservative Justices Samuel A. Alito Jr. and Clarence Thomas dissented.
The Supreme Court made clear it was not addressing the broader question about whether Trump officials can legally invoke the wartime statute to target alleged members of the Tren de Aragua gang. Instead, they sent the case back to the U.S. Court of Appeals for the 5th Circuit for further proceedings.
“We recognize the significance of the Government’s national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution,” according to the order.
In a concurring statement, Justice Brett M. Kavanaugh said the Supreme Court’s injunction “simply ensures that the Judiciary can decide whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act before they are in fact removed.”
Kavanaugh said he would have preferred to have the Supreme Court take up the underlying legal questions and called for a “prompt and final resolution” of the matter.
Lower courts have largely rejected the administration’s rationale for fast-track deportations. Judges in Colorado, New York and Texas have all concluded that it was unlawful for Trump to invoke the Alien Enemies Act and rejected the administration’s declarations that the United States is being invaded by the Venezuelan gang to justify its use of the centuries-old act to try to deport migrants without a hearing. The judges have barred or temporarily paused such deportations in their districts.
A federal judge in Pennsylvania has allowed the administration to invoke the wartime law, but described the administration’s process for carrying out those removals as “constitutionally deficient” and ordered the government to give targeted migrants at least 21 days’ notice and opportunity to challenge their removals.
The White House has defended Trump’s use of the statute, which has been used three times previously, during the War of 1812, World War I, and World War II. It allows the president to skip the usual immigration court process to detain and deport anyone age 14 or older from a “hostile nation or government” when “there is a declared war” with such nation or when a “foreign nation” threatens “invasion or predatory incursion” against the United States.
The American Civil Liberties Union, which is representing some of the targeted migrants, had told the justices the Trump administration’s notice of deportation did not comply with the April 7 Supreme Court order because it is written in English, not Spanish, and gave the detainees just 24 hours to appeal.
The organization asked the court to ensure at least 30 days notice and provide clear direction to lower courts about how to handle these cases.
A court filing on April 23 showed that the government is giving migrants 12 hours to indicate if they want to challenge their deportations under the Alien Enemies Act—an amount of time their lawyers said falls short of the meaningful opportunity the Supreme Court initially outlined.
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