On Monday evening, the U.S Supreme Court ruled that, at least for now, the Trump administration can continue invoking the Alien Enemies Act of 1798 to deport migrants. The ruling comes after President Donald Trump issued an executive order last month asserting his right to use the law.
The ruling wasn’t a total win for Trump, however, as judges included in their order stipulations on the administration’s use of the Alien Enemies Act, affirming the right of migrants targeted by the policy to sue against its use in their case.
In an executive order in mid-March, Trump described the presence of the Tren de Aragua (TdA) gang in the U.S. as an “invasion,” using that description to justify invoking the Alien Enemies Act to deport migrants he deemed to be violent gang members. Shortly after, Trump deported hundreds of Venezuelan migrants from the U.S. to a prison in El Salvador that is notorious for its inhumane conditions. Such deportations constitute a blatant violation of migrants’ due process rights, advocate groups have noted.
Immigrant rights groups sued to stop the administration from using the act, resulting in temporary restraining orders (TROs) on the White House’s use of the act from district court judges. The 5-4 ruling from the court on Monday, however, grants the Trump administration the ability to continue “detain[ing] and remov[ing] Venezuelan nationals” it deems to be members of violent gangs, overturning those lower court TROs.
The ruling is not a definitive answer to questions on the legality of Trump using the Alien Enemies Act, but allows him to do so until lower courts make final judgments on the matter.
The Supreme Court also ruled that groups suing against the administration on behalf of detained migrants could only do so in jurisdictions where those individuals were being held — not in the Washington, D.C. district court system. In this case, that would mean challenges to deportations would have to restart and move to Texas-based federal courts, which are more conservative.
Trump heralded the ruling in a Truth Social post, calling it “A GREAT DAY FOR JUSTICE IN AMERICA!”
The order from the Supreme Court, however, does place some restrictions on the administration. It recognizes, for example, the right of migrants to sue to stop their deportations, as many family members of those detained by the administration have said that they are not gang members at all. (Notably, a CBS News analysis of migrants sent to the El Salvador prison system demonstrates that around three-quarters of the people deported have no criminal record whatsoever.)
In a concurring opinion with the court’s majority, Justice Brett Kavanaugh stated that “all nine Members of the Court agree that judicial review is available” to anyone the Trump administration seeks to deport under the Alien Enemies Act. In a dissenting opinion, Justice Sonia Sotomayor also stressed that point.
“Critically, even the majority today agrees, and the Federal Government now admits, that individuals subject to removal under the Alien Enemies Act are entitled to adequate notice and judicial review before they can be removed,” Sotomayor wrote.
Justice Ketanji Brown Jackson also dissented, referencing the Supreme Court’s prior rulings upholding the internment of Japanese Americans during World War II, which was also justified through the use of the Alien Enemies Act.
“Make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences,” Jackson wrote.
The order allows the Trump White House to continue using the act to deport migrants living in the U.S. The order may also indicate how the Supreme Court will rule on the matter once the lower courts complete their reviews.
Lee Gelernt, lawyer for the American Civil Liberties Union (ACLU), said it was disappointing that the challenges to deportation orders would “need to start the court process over again” in a different jurisdiction, but took solace in the fact that other protections were upheld.
“The critical point is that the Supreme Court rejected the government’s position that it does not even have to give individuals meaningful advance notice so they can challenge their removal under the Alien Enemies Act,” Gelernt told The New York Times. “That is a huge victory.”
Other critics of the ruling noted that, by disallowing challenges in the D.C. district court system, the process to challenge Trump’s use of the Alien Enemies Act becomes more difficult.
The ruling “leaves the people whom Trump already denied due process without immediate recourse to vindicate their constitutional rights,” requiring them “to find lawyers who will file separate lawsuits around the country in order to secure the most basic of liberties: freedom from arbitrary searches and seizures of their bodies,” law professor Kim Wehle wrote on Zeteo. “This makes it harder for individuals and easier for Trump.”
The Supreme Court ruling is “a win for a president who fully admits to violating the Constitution right now,” Wehle added.
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