Supreme Court to Trump: Yes to Deportations under 1798 Law, and More
[guest post by Dana]
A gift to Trump:
The Supreme Court on Monday allowed President Donald Trump to enforce the Alien Enemies Act for now, handing the White House a significant victory that will let immigration officials rely on a sweeping wartime authority to rapidly deport alleged gang members.
The unsigned decision in the case, the most closely watched emergency appeal pending at the Supreme Court, lets Trump invoke the 1798 law to speed removals while litigation over the act’s use plays out in lower courts. The court stressed that people deported going forward should receive notice they are subject to the act and an opportunity to have their removal reviewed.
The report breaks down the vote: the 3 liberal justices, along with Coney-Barrett, dissented.
There was more news from the Court today:
Chief Justice John Roberts agreed Monday to pause a midnight deadline for the Trump administration to return a Maryland man mistakenly deported to a notorious prison in El Salvador.
The temporary order comes hours after a Justice Department emergency appeal to the Supreme Court arguing U.S. District Judge Paula Xinis overstepped her authority when she ordered Kilmar Abrego Garcia returned to the United States.
The administration has conceded that Abrego Garcia should not have been sent to El Salvador because an immigration judge found he likely would face persecution by local gangs.
Even though the administration acknowledged and agreed that they had wrongly sent Abrego Garcia to El Salvador, there is still going to be a court-approved delay in returning him to the United States. No new date was set by the Court.
Expectedly, Trump’s team of attorneys argued that the Court had “overstepped” their power by ordering Abrego Garcia returned.
—Dana
Hello.
Dana (088f82) — 4/7/2025 @ 4:38 pmAnd since the claim must sound in habeas and be brought in the court which has jurisdiction over the locus of confinement, once the people are illegally removed, there *is no legal remedy in practice* even though there is one in theory.
aphrael (dbf41f) — 4/7/2025 @ 5:20 pmThere is always contempt of court, where some poor slob of a junior officer waits in the slammer for the deportee to return.
Kevin M (a9545f) — 4/7/2025 @ 7:29 pm> There is always contempt of court, where some poor slob of a junior officer waits in the slammer for the deportee to return.
How do you even get the case to that point if no court has competent jurisdiction?
If you buy the arguments made by the US Government in the *other* case, you can’t bring a habeas case for someone detained oversees because no court has jurisdiction over it.
aphrael (dbf41f) — 4/7/2025 @ 7:56 pmGood summary by Ed Whelan at NRO
.
Paul Montagu (b69d31) — 4/7/2025 @ 8:59 pmOops, here.
Paul Montagu (b69d31) — 4/7/2025 @ 9:00 pmThese black-robed gerbils have no interest in American ideals or American exceptionalism. Their raison d’etre is the collection of next year’s taxes.
As long as they get their share of the kingdom and the power and the glory. Which you will note they did take care to preserve for themselves in this case.
nk (3658ee) — 4/8/2025 @ 4:02 amIf I understand this ruling, and I’m not a lawyer, what they said is that it has to go to Texas, and then Texas can issue the order to force The government to return him.
They also appeared to have said that the administration has to give people targeted for deportation under these powers, a reasonable opportunity to contest their deportation in court. Do any of the lawyers on this thread care to help me understand if I’ve understood this correctly.
Time (83158d) — 4/8/2025 @ 5:10 amThey also appeared to have said that the administration has to give people targeted for deportation under these powers, a reasonable opportunity to contest their deportation in court.
That’s the easy part. It is fundamental procedural due process: Notice and an opportunity to be heard.
If I understand this ruling, and I’m not a lawyer, what they said is that it has to go to Texas, and then Texas can issue the order to force The government to return him.
That’s the hard part. The court said that the sole remedy is a petition for habeas corpus and present day federal habeas corpus requires the petition to be filed where the person is being held, in this case Texas. The federal district court in Texas, under federal habeas corpus, not the state court under state law, to be clear.
But what about when the person has already been flown out of the country when the petition is heard? Will the judge hearing the petition be “beating a dead horse” as the DOJ lawyer told Judge Boarsman. We’ll need to wait for that case to resolve, I think.
nk (3658ee) — 4/8/2025 @ 5:23 amBut the plaintiffs in this case might be able to take some heart in “the law’s delay” as Hamlet put it.
The mandate enforcing the Supreme Court’s opinion is not issued instanter unless the Court orders it. The plaintiffs could have time to file for habeas in Texas before the DC district court loses jurisdiction.
nk (3658ee) — 4/8/2025 @ 5:29 amNK, thank you.
Time (83158d) — 4/8/2025 @ 5:33 amDe nada.
nk (455b22) — 4/8/2025 @ 8:13 amWill the judge hearing the petition be “beating a dead horse” as the DOJ lawyer told Judge Boarsman. We’ll need to wait for that case to resolve, I think.
As Boarsman asked, who let this happen? Going forward, deportation of individuals without due process will be violating the USSC order. Does the responsible federal court district have any power over that?
Kevin M (a9545f) — 4/8/2025 @ 8:40 amFor me, the question is whether any of the deportees in El Salvador have remedy, where they can return to have their cases heard. In effect, is their ruling retroactive for El Salvador prisoners?
Paul Montagu (51dd04) — 4/8/2025 @ 9:01 am> Going forward, deportation of individuals without due process will be violating the USSC order. Does the responsible federal court district have any power over that?
They will not be violating any specific court order, though. *As a process matter* the court has *not issued an injunction against the administration*.
The court issued an opinion which says that due process is required, but there is no binding order in any specific case (or globally).
So if we get another case where someone is deported without due process:
* their lawyer has to bring suit in whatever district they were held in before being deported (which means they have to know what district it is);
* the decision today is _precedent_ for that case but is not a binding order, so contempt/etc will not apply;
* the government will argue that it has no power to retrieve the person, even if a mistake was made (the same argument it’s making in the case of the salvadoran citizen who was sent to el salvador in violation of a court order); whether that argument works or not will depend on the outcome of the salvadoran-citizen case;
* MAYBE there’s enough to get around qualified immunity if the lawyer decides to sue the individual officers involved.
aphrael (dbf41f) — 4/8/2025 @ 9:34 am> who let this happen?
who is going to stop it? DoJ won’t, that’s for sure.
aphrael (dbf41f) — 4/8/2025 @ 9:35 amWhile this ruling (and in other cases) are not on the merits, it does suggest what the final decisions will be.
Rip Murdock (d2a2a8) — 4/8/2025 @ 10:26 am#14
For me, the question is whether any of the deportees in El Salvador have remedy, where they can return to have their cases heard. In effect, is their ruling retroactive for El Salvador prisoners?
A lot depends on how the Supremes rule on the El Salvador case. In principle, they are requiring habeas. My understanding is that the appropriate circuit for a person imprisoned outside of the US is Washington DC. Until that case comes down, I’m withholding judgment on whether the Supremes are going to let us down again.
Watch out for this Constitutional provision. I’m sure Trump is anxious to apply it.
Trump is making a habit of abusing emergency declarations, and the courts have not to date addressed it.
Appalled (ff62b2) — 4/8/2025 @ 12:55 pmYes to the 1798 law – up in the air about its appplicability.
Sammy Finkelman (e4ef09) — 4/8/2025 @ 2:13 pmThe person deported in vpolation of a court order has the best case.
Sammy Finkelman (e4ef09) — 4/8/2025 @ 2:14 pm