In a April 7 decision, none of members of the court bought into the Administration’s denial of due process when it deported several hundred persons and placed them in a prison in El Salvador. But it is not clear if at least five will vote against general use of the Alien Enemies Act for deporting persons. Very soon the court will address this issue full force.
The lead-up to April 7: The Trump administration asserted that the Alien Enemies Act (AEA) provides for stealthy deportation of 200 plus Venezuelans on March 15. DC District court Judge James Boasberg issued a temporary restraining order against using this Act and demanded that the government address the question of whether it knowingly violated the injunction. He did not question whether the Alien Enemies Act can legally be used to deport the Venezuelans. (The ACLU says no; the government says yes.) The government appealed to an appellate court to remove the temporary restraining order. The appellate court did not remove the order,
On April 7 the Supreme Court voted 5-4 (unsigned) to remove the restraining order. The Administraion can now resume deporting persons under the Act.
It also said that those deported on the flight have a right to have their cases heard in court: “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 corpus relief in the proper venue before such approval occurs.” All nine judges affirmed that the detainees have a right to court review. This unanimous affirmation will severely hinder the Administration’s clear intent to use the AEA to conduct swift deportations. Persons might still be snatched off the street and put into detention but they cannot immediately deported.
It said that the venue for suits regarding the Venezuelan deportations is to be in Texas, not in the District of Columbia, and that the suits need to be based on habeas corpus. The ACLU-led, class action-type suit on March 15 to stop the deportation flight cited Administrative Procedures Act. It said that it was not asking for release from detention but rather cancellation of flights. The APA does not involve habeas corpus, which would have asked for release from detention. Filing individual habeas petitions in Texas courts was not feasible on March 15, given the urgency and secrecy of the deportation effort.
The five-judge majority pointedly declined to address the question of appropriateness of the AEA. The dissenters were either strongly opposed to the use of AEA in this case or were at least skeptical.
The dissent written by Sotomayor directly attacked the use of the AEA. Signing Sotomayor’s dissent were Jackson, Kagan and Barrett (partial). Sotomayor wrote a detailed narrative of the affair from late March 14 on. She then severely critiqued the appropriateness of the of the AEA. Only Kagan appears to have broadly agreed with Sotomayor’s critique. But Jackson and Barrett appear to be skeptical of the use of the AEA.