Today was a sort of good day for Donald Trump at the Supreme Court. The Supreme Court stayed U.S. District Court Judge Paula Xinis’s insistence that Trump immediately return to America Kilmar Armando Abrego Garcia, an illegal alien and MS-13 gang member, who is now in an El Salvadoran prison. That was a non-substantive ruling and the substantive issues will have to be addressed once the matter goes back to Xinis. The seemingly big win was the Court’s saying that U.S. District Court James Boasberg lacked jurisdiction to override Trump’s decision to deport 250 Tren de Aragua gang members. I maintain, though, that this was a Pyrrhic victory.

Here’s a quick background to catch you up on things:

On March 15, 2025, Donald Trump, acting under the 1798 Alien Enemies Act (“AEA”), announced that Tren de Aragua’s presence here was a predatory incursion perpetrated against America by Venezuela and ordered that its members be immediately deported. Accordingly, 250 were put on a plane and flown to El Salvador. U.S. District Court James Boasberg issued an invalid minute order (no explanation for his ruling, despite the mandate of Federal Rule of Civil Procedure) in which he held that the deportation was illegal, and he ordered the plane turned around. The plane did not turn around. There are also detainees in Texas who were caught up in the same AEA net.

Since 1799, the courts have held that Congress intended to vest in the president all authority and discretion under the Act, including the right to make a mistake. After all, the president can be kicked out of office every four years; the judges cannot. The Supreme Court last affirmed this vast power in 1948’s Ludecke v. Watkins.

This Supreme Court, while slapping down Judge Boasberg’s ruling, concluded that the courts still have power to determine matters under the AEA but that the power must be exercised in the jurisdiction where the declared enemy is located.

In this particular case, Boasberg had no such jurisdiction over the detainees already on the plane, while those who haven’t yet been shipped out are in Texas, far from Boasberg’s courtroom. So, those cases go to the Fifth Circuit courts, which are more conservative.

The real problem is that the Supreme Court emphasized that every person named as an “alien enemy” under the AEA is entitled to judicial review. This is insane because it means that the judiciary will, once again, take unto itself the power to control foreign policy.

While this standard currently applies to the 18-20 million ordinary illegals that Biden let in (something no legislator or judge ever contemplated when immigration laws were passed or reviewed), it cannot possibly apply to the AEA, which is a question of foreign policy solely under the executive’s purview. (Sadly, though, Bondi’s DOJ actually gave the Supremes this opening, so part of the responsibility for this ludicrous holding is on her.)

And keep in mind that the AEA’s purpose is simply to send enemies back home, not to execute them or even imprison them. It just gives the president the power to repatriate people he, in his constitutional foreign policy discretion, believes are dangerous enemies. The only reason these Tren de Aragua guys are going to a prison in El Salvador is that Venezuela, as part of its predations against the U.S., is refusing to repatriate its own citizens.

The big fight now is going to be over detained Tren de Aragua members who claim to be younger than 14, the statutory limit in the Act. Since none have papers, there’s no way to know their ages. And while the Fifth Circuit probably won’t let this go by, it’s still an easy opening for leftist courts to say that bearded men with basso profundo voices are under 14 and must stay in America—and every man gets his day in court.

Many are celebrating, but I believe this is a bad decision.

Image by Matt Popovich. Public domain.