The Court’s order was appropriate; the president’s reaction was unhinged.
Late Friday, the Supreme Court upheld its prior order that the Trump administration refrain from deporting Venezuelans alleged to be members of Tren de Aragua (TdA) under the Alien Enemy Act (AEA) until the justices determine whether doing so is legal. The president responded with an unhinged social media post that misstated basic facts.
The Court’s eight-page per curiam (unsigned) ruling commanded a seven-member majority, including all three Trump appointees. One of them, Justice Brett Kavanaugh added a separate concurrence. Justice Samuel Alito, joined by Justice Clarence Thomas, dissented, opining – as they had in connection with the Court’s original April 19 order in the case – that the Court lacks jurisdiction.
The case arises out of the administration’s plans to deport several dozen more Venezuelans, presumably to El Salvador, which emerged on Easter weekend. This was after the first AEA deportation in mid-March, in which scores of alleged TdA members were deported to El Salvador, where they are detained in a prison notorious for human rights violations (as our own State Department has attested).
As the Trump administration itself now concedes, and as the Supreme Court has unanimously ruled in Trump v. A.G.G. (on April 7), the AEA designees in that first batch of deportations were entitled to file habeas corpus petitions challenging their transfer to El Salvador. Specifically, they may litigate (a) whether the president’s AEA proclamation is properly applied to them (i.e., whether they are actually members of TdA), and (b) whether the president lawfully invoked the AEA.
The administration furtively deported the aliens without permitting those due process challenges. It has since made no effort to return them for that purpose. Simultaneously, in the separate case of Kilmar Abrego Garcia – a Salvadoran the administration concedes it illegally deported in violation of a DOJ immigration court’s ruling that he not be repatriated to El Salvador (which the Trump Justice Department failed to appeal in 2019) – the administration takes the position that, even though the Supreme Court directed the government to facilitate his return, because the alien is now detained outside the jurisdiction of the United States and the federal courts, the government need not make any effort to get him back and the judiciary is powerless to do anything about it.
These gambits have damaged the credibility of the administration and its Justice Department with the Court. In light of the gamesmanship, the justices had every reason to believe that, on Easter weekend, the administration intended (a) to deport more aliens with blatantly inadequate notice and under circumstances in which its reliance on the AEA is dubious, and then (b) to contend that because the aliens were now outside the United States the courts were bereft of jurisdiction to vindicate their due process rights. That is why the Court ordered the government not to deport members of the putative class of Venezuelans to whom the AEA proclamation might apply until further order of the Court – with the caveat that, in the interim, habeas litigation challenging the proclamation would proceed.
As I detailed at the time, Justice Alito raised significant questions about whether the Court had jurisdiction to act. His dissent, however, did not grapple with the administration’s disingenuousness in refusing to tell defense counsel, and failing to inform the lower court, whether it was, in fact, planning deportation flights that could depart at any moment.
In Friday night’s per curiam, unlike in its succinct order last month, the majority took issue with Alito’s jurisdictional contentions. In the main, however, it sustained the ban, while expediting the underlying litigation of the merits, because the administration is not trustworthy – an impression the president promptly confirmed with his post (which we’ll come to). In sum, the administration gratuitously created an emergency, refused to be transparent about its intentions, and takes the position that it can violate the law with impunity as long as it succeeds in getting people out of the country – all because the president does not believe the aliens should have due process rights … notwithstanding his Justice Department’s grudging concession, while out of White House earshot, that longstanding precedent and statute hold that they do.
Technically speaking, the Court held that the Fifth Circuit was wrong to conclude that the aliens had not given Judge James Wesley Hendrix (a Trump appointee in the Northern District of Texas) a reasonable amount of time to act before presuming that his inaction was a constructive denial of their emergency application to halt deportations. The majority rejected the lower courts’ suggestion that defense lawyers had only given Judge Hendrix 42 minutes to act before appealing, pointing out that the emergency application was filed over 14 hours before the appeal (42 minutes was the amount of time that elapsed between the aliens lawyers attempt to nudge Judge Hendrix to act and the filing of the appeal).
The ensuing catch-22 forced the Supreme Court’s hand: Hendrix claimed to have no jurisdiction to rule due to the emergency appeal, the Fifth Circuit was saying the aliens needed to give Hendrix an opportunity to consider their claims, and in the meantime the administration was telling the detainees that they were about to be deported.
To be clear, the Court has not ruled against the president on the main AEA issues in the case – at least not yet. And it has directed the Fifth Circuit on remand to deal with them expeditiously, with the understanding that the case is destined to be decided by the High Court itself. (Since this case is manifestly headed for Supreme Court resolution, Justice Kavanaugh opined that the Court should just keep it for that purpose rather than remand it to the lower courts, as the majority decided to do.) The two questions to be decided are: (a) whether the president has validly invoked the AEA; and (b) what notice and opportunity to be heard must the administration give to aliens it intends to deport under that AEA (e.g., how much time before deportation the notice must be given, what form the notice should take, and what legal form a challenge should take).
Moreover, as I said was likely to happen, the majority clarified that its order is limited to deportations under the AEA. To the extent its earlier order was overbroad, the Court elaborated that if the administration has grounds to deport under Congress’s immigration laws, independent of the AEA, those deportations may proceed.
This was an entirely reasonable disposition. It assures that the administration will have clarity regarding the AEA on a fast track, despite the fact that it is the president who is creating controversy by acting unilaterally and outside Congress’s immigration laws. Nevertheless, after the Court’s order was announced, President Trump posted the following on his private social media platform:
The Supreme Court has just ruled that the worst murderers, drug dealers, gang members, and even those who are mentally insane, who came into our Country illegally, are not allowed to be forced out without going through a long, protracted, and expensive Legal Process, one that will take, possibly, many years for each person, and one that will allow these people to commit many crimes before they even see the inside of a Courthouse. The result of this decision will let more CRIMINALS pour into our Country, doing great harm to our cherished American public. It will also encourage other criminals to illegally enter our Country, wreaking havoc and bedlam wherever they go. The Supreme Court of the United States is not allowing me to do what I was elected to do. Sleepy Joe Biden allowed MILLIONS of Criminal Aliens to come into our Country without any “PROCESS” but, in order to get them out of our Country, we have to go through a long and extended PROCESS. In any event, thank you to Justice Alito and Justice Thomas for attempting to protect our Country. This is a bad and dangerous day for America!
I never thought I’d say this, but the president made more sense when he was ranting about Bruce Springsteen.
To begin with, the Venezuelan aliens at issue were in custody in immigration proceedings before Trump issued his AEA proclamation. They will not be committing crimes on our streets – their lawyers have repeatedly stressed that they are challenging their deportation under the AEA, not their detention under immigration statutes. The Court said that if the government has a non-AEA basis to deport, it may do so. If, as the president maintains, the aliens are criminals and psychopaths, the immigration laws provide for expedited removal. For cases in which the alien is in custody and the government actually has evidence of the kind the president describes, the process generally takes a few weeks, not “many years for each person.” To the extent there are delays, it is because the Congress has failed to provide adequate resources; that’s got nothing to do with the Court.
Moreover, if aliens have committed crimes in the United States, they should be prosecuted, sentenced, imprisoned, and then deported. That conveys our government’s seriousness of purpose in enforcing our penal laws as well as our immigration laws. Alien criminals shouldn’t escape American prosecution by being sent to a country from which they could illegally enter our country yet again.
The Supreme Court is not preventing the president from doing what he was elected to do. It is absurd to maintain that no one but Justices Alito and Thomas want to protect the country. Like the rest of the Court, Justices Alito and Thomas are trying to get to the right legal result on what must be done before the Venezuelan aliens are deported. They were members of last month’s aforementioned unanimous decision that the aliens have due process rights. The questions are about how those rights apply in this situation; and you may notice that, in the meantime, the aliens are detained – the Court hasn’t turned them loose.
Just as the president has no authority to rewrite Congress’s immigration laws, neither does the Court. The AEA is not a deportation statute; it is an emergency wartime statute that, in American history, has been invoked only after Congress has declared war (in 1812, and in the two world wars of the twentieth century). It is not a vehicle by which the president can ignore congressional immigration law in peacetime.
Trump’s concoction of deportation authorities that don’t exist in statutory law is just as unconstitutional as Obama’s lawless decrees of immigration amnesty (e.g., DACA and DAPA) and Biden’s lawless decree of “parole.” While the “they did it, so I can do it” notion appeals to the president’s retributive sense of justice, we have a Constitution, not Hammurabi’s code. The MAGA warriors now defending Trump’s lawlessness are the same people who railed about the lawlessness of Obama and Biden. If we don’t uphold the law, no matter who the president is, then we will have no defense against the next authoritarian progressive Democratic president.
To repeat, the president’s capacity to conduct deportations is constrained by the resources Congress provides. Trump’s only mandate is to be president for four years, during which he is constitutionally obliged to enforce the laws faithfully, including constitutional and statutory due process mandates. As for what he “was elected to do,” Americans who voted for Trump in hopes that he would effectively address the illegal immigration and border crises expected that he would make maximum use of the laws and resources at his disposal. No one elected him to break the laws.
If the point of the post was to try to persuade the justices, I’d say it’s a floperoo. If it’s the same, already tired red meat for the base, mission accomplished.