The US supreme court may have ruled that the Trump administration could continue using an 18th-century wartime law to deport Venezuelan immigrants it accused of being gang members – but it also notably impeded the government’s reliance on summary deportation without due process in such situations.
Monday’s emergency ruling lifted a temporary block on the controversial deportations. The legal challenge to the removals had been brought by the American Civil Liberties Union (ACLU) and the organization Democracy Forward on behalf of the men deported to El Salvador last month without so much as a court hearing. The organizations argued that the Trump administration acted unlawfully when it bypassed immigration laws and ordered their removal under the 1798 Alien Enemies Act, or AEA. The US government last invoked the law to detain Japanese, Italian and German nationals during the second world war.
The federal judge James Boasberg in Washington DC had ordered a halt to the deportations on 15 March, when two planes carrying 238 men were already en route to El Salvador. While some of those on board had final deportation orders, 137 were removed from the US under the act’s authority without going through the regular removal process. An appeals court upheld his order and the administration appealed to the highest court in the land.
On Monday the supreme court sided with the administration’s request to lift the block, in a split 5-4 ruling led by conservative justices, with Amy Coney Barrett joining the three liberal justices, but did not rule on the legality of using the wartime authority in principle. Crucially, all of the justices agreed that anyone facing deportation had a right to challenge their removal – a decision advocates hailed as a victory for due process.
Was this ruling a win for Trump?
Trump framed the ruling as a win. Some called it a pyrrhic victory. Immigration advocates claimed it was their win, with Lee Gelernt, the deputy director of the ACLU’s Immigrants’ Rights Project and lead counsel in the case, saying in a statement: “The critical point of this ruling is that the supreme court said individuals must be given due process to challenge their removal under the Alien Enemies Act.”
That means each of the men has a legal right to argue “I’m not an alien enemy, you can’t deport me under this authority,” said Anthony Enriquez, vice-president of US Advocacy and Litigation at RFK Human Rights. “Everyone has the right to go to court to challenge the applicability of the act.”
The ruling essentially means that the government’s invocation of the AEA does not allow it to deport people without giving them a chance to defend themselves. “The way the government was progressing very, very rapidly effectively negated the ability of these noncitizens to bring habeas petitions,” said Katherine Yon Ebright, a counsel at the Brennan Center’s Liberty and National Security Programme. “And so people were given notice the same day that they were later loaded on to planes, with no opportunity to contact their families or counsel, in some cases.”
“It’s not an outright victory for either side,” she added, noting that those who lost out the most are the men who have already been deported to El Salvador. “It’s far less clear what their avenue for return to the United States may look like.”
The supreme court did not decide whether the deportations themselves were legal, referring that decision to a lower appeals court in Texas. In practice, that means the men currently imprisoned in El Salvador will remain there for the foreseeable future while their cases – individually, or as a class, if the lower court will allow it – proceed.
“Functionally speaking, that means that there are going to be a lot of delays for these people,” said Enriquez. “And every day, they’re suffering the harm of torture, and of illegal imprisonment, and so that’s a big loss for them.”
What does habeas have to do with it?
A writ of habeas corpus, often referred to just as habeas, is a legal process by which any detained individual can challenge the legality of their detention.
The supreme court reaffirmed the right to that process in this case, stressing that the men facing removal orders under the AEA are entitled to enough notice and time to “actually seek habeas relief”, the court ruled.
That is a rejection of the Trump administration’s argument that courts have no jurisdiction on the matter whatsoever because “this is about war, this is about immigrants, and the president can do whatever he wants,” Enriquez said. “All of the justices have said firmly: ‘No, that’s not true.’”
The ruling theoretically throws sand in the gears of the administration’s effort to summarily deport people, although Ebright noted that because the court didn’t specify what constitutes a “reasonable time” to seek relief, it’s likely the government will continue to try to rush to deport people. “They may continue applying the Alien Enemies Act in a way that tries to de facto strip people of their ability to seek habeas,” she said.
Meanwhile the court ruled that any further legal challenges from the men must take place in Texas, where they were detained until recently, and not in Washington DC where they sued in a class action. It won’t be easy for many to get lawyers to fight their cases individually, although advocates are preparing for that possibility and have begun to assemble a network of attorneys ready to take on their cases.
What will transferring the case to Texas mean for the detained men?
That part of the ruling is largely a win for the government. The US court of appeals for the fifth circuit, which now has jurisdiction over the case, is one of the most conservative appeals courts in the country.
By ruling that the case must be argued in the jurisdiction where the men were detained when the habeas was filed, the supreme court in effect allowed the government to “venue shop”, said Enriquez, meaning create the conditions where the administration believes a friendly judge will hear the case.
What does this ruling say about the supreme court’s position on Trump’s immigration policies?
It’s unclear. The court ruled on it as part of its “shadow docket”, a set of cases on which the court is asked to intervene by an emergency petition, without an opportunity for extensive briefings or oral arguments.
“It’s hard to say from the court’s decisions how they would rule on the eventual question of whether the Alien Enemies Act can be invoked at all,” Enriquez said. “They were purposefully opaque.”
While the case will now continue to be litigated in Texas, that question is almost certain to eventually come back to the supreme court.
“The main point is that the fight is not over,” said Enriquez.
