Late on Friday, May 16, in the case of A.A.R.P. v. Trump, the U.S. Supreme Court enjoined the Trump administration from carrying out further deportations under the Alien Enemies Act of 1798 (the “Act”) of 176 Venezuelan detainees currently held in Texas.
The 7–2 majority (Kavanaugh, J., concurring) criticized the administration and the U.S. Court of Appeals for the Fifth Circuit for their earlier handling of the case. Indeed, the detainees were being put on buses for deportation as the case was being considered by the Supreme Court.
While only last month, the Court allowed the president to invoke the Act to speed alien removals while litigation continues in lower courts, the Court also commanded that those threatened with removal should receive notice that they are subject to the Act and entitled to a “reasonable” opportunity to challenge their removal before the federal court where they are being detained. The administration had argued that the president had summary power to expeditiously deport alleged members of the gang Tren de Aragua.
“Under these circumstances,” the Court stated Friday in an unsigned per curiam opinion in the instant case, “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.”
The administration was further undermined by the Court’s recollection that the government had recently insisted that it is unable to bring back Kilmar Abrego Garcia, a man wrongly deported to El Salvador in March. The Supreme Court told the government last month to try to return Abrego Garcia. The government’s failure or inability to do so highlighted the exigency of the case and the failings of the lower courts to require the prompt exercise of due process.
For these reasons, the Court enjoined the administration from deporting the subject individuals and ordered the remand of the case to the Fifth Circuit for resolution of the matters that had been raised. The injunction will remain in force through the Fifth Circuit proceedings and any subsequent Supreme Court action.
Justices Alito and Thomas dissented, asserting more than a little questionably that the Supreme Court lacked jurisdiction at this stage. Alito wrote colorfully, though not persuasively, that the Court “has plucked a case from a district court and decided important issues in the first instance.”
In detailing the haste of the various actions and proceedings of the lower courts, the Supreme Court’s opinion sounds as if it were written with the aid of a stopwatch. The end result, however, is that, while a substantial majority of the Court, including the Justices nominated by President Trump, acknowledged that a president has considerable summary powers under the Act, that power is constrained by due process considerations.
A final note: This case reads as if it were essentially treated as a class action, but without the time-consuming procedures related to class certification. This might presage how the Court will deal with the issue of nationwide injunctions discussed in this blog in connection with the pending “birthright citizenship” case.
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