The Supreme Court on Monday threw out a judge’s decision to block the removal of men alleged to be members of the Venezuelan gang Tren de Aragua to El Salvador without any legal process under the Alien Enemies Act.
The ruling, in which the justices were divided 5-4 in part, means the Trump administration can try to resume deportations under the rarely used wartime law, so long as detainees are given due process.
The detainees must be given time to challenge their detentions via a habeas corpus claim and be able to challenge whether the act is being lawfully applied.
The fast-moving case concerns Trump’s aggressive and unprecedented use of presidential power in invoking the 18th century law, which has been used only when the country was at war.
The decision leaves various legal questions about the novel invocation of the Alien Enemies Act undecided, including whether the Trump administration can even invoke it against gang members.
“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,” the court wrote in its unsigned majority opinion.
Five conservative justices were in the majority, while the three liberals dissented, joined in part by conservative Justice Amy Coney Barrett.
“The Government’s conduct in this litigation poses an extraordinary threat to the rule of law,” liberal Justice Sonia Sotomayor wrote in a dissenting opinion. “We, as a Nation and a court of law, should be better than this,” she added.
Liberal Justice Ketanji Brown Jackson spoke to the historic nature of the ruling’s being issued Monday before Boasberg has even held a hearing on a preliminary injunction. She complained about a recent rise in the court deciding major cases on the emergency “shadow docket” without having extensive briefing and hearing oral arguments.
“With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it,” she wrote.
“At least when the court went off base in the past, it left a record so posterity could see how it went wrong,” she added, citing the notorious ruling that allowed government confinement of Japanese Americans during World War II.
The government previously indicated in court that if Boasberg’s order was lifted, it would immediately begin deportations.
Both sides claimed a level of victory.
“An activist judge in Washington, DC does not have the jurisdiction to seize control of President Trump’s authority to conduct foreign policy and keep the American people safe,” Attorney General Pam Bondi said on X.
Homeland Security Secretary Kristi Noem said in a post on X that the decision was a “victory for commonsense security.”
