Supreme Court Sides with Trump on Deportations, at Least for Now

There was another narrow but significant win for the Trump administration at the Supreme Court today. In a 5-4 decision, the Court ruled the administration could use the Alien Enemies Act against foreign gang members for now. However, there is a catch. The Justices didn’t actually rule on whether the use of the act was correct, only that the challenge brought against it was made in the wrong venue.

The decision marks a victory for the Trump administration, although the ruling is narrow and focused on the proper venue for the cases, rather than on the administration’s use of a centuries-old law to justify its decision to send planeloads of Venezuelans to El Salvador with little to no due process…

“The detainees are confined in Texas, so venue is improper in the District of Columbia,” according to the court’s order, which was brief and unsigned, as is typical in such emergency applications.

In a concurrence, Justice Brett M. Kavanaugh stressed that the justices were in agreement that the migrants should receive judicial review, but that they were divided over where the case should be heard.

“As the court stresses, the court’s disagreement with the dissenters is not over whether the detainees receive judicial review of their transfers — all nine members of the court agree that judicial review is available,” Justice Kavanaugh wrote. “The only question is where that judicial review should occur.”

Justice Amy Coney Barrett joined the court’s three liberal justices in the minority. Justice Sotomayor wrote a dissent:

Writing a dissent joined by the other two Democratic appointees and partially by Barrett, Justice Sonia Sotomayor called the majority’s legal conclusion “suspect.” She said the court granted the government “extraordinary relief” and said the court did so “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.”

The backstory here is that a judge in DC had put a stop to the deportations and the administration also lost an appeal.

On March 15, U.S. District Judge James Boasberg issued temporary restraining orders to halt certain deportations under the act pending further litigation. A divided federal appellate panel in Washington, D.C., declined to halt Boasberg’s orders, and the government appealed to the justices.

“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country — the President, through Article II, or the Judiciary, through TROs,” the administration wrote, referring to temporary restraining orders. “The Constitution supplies a clear answer: the President. The republic cannot afford a different choice,” it said in the March 28 application to Chief Justice John Roberts, who handles emergency litigation from D.C.

So on the one hand this is a win for the Trump administration, taking this case out of the hands of Judge Boasberg. On the other hand, if you read the decision it’s clear that all of the Justices want to see prior notification of anyone facing deportation and a chance to contest that in court.

Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to “‘judicial review’” as to “questions of interpretation and constitutionality” of the Act as well as whether he or she “is in fact an alien enemy fourteen years of age or older.”…More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act.  The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

All that to say, this is a temporary win. The venue will now move to Texas but the individuals will still have a chance to contest their deportation. The outcome of those cases may be several weeks or months down the line but the courts will have a say.