Today, in AARP v. Trump, the Supreme Court issued a ruling blocking deportation of a group of Venezuelan migrants the Trump Administration had been trying to use the Alien Enemies Act of 1798 deport to imprisonment in El Salvador. The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) “[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.”
The Supreme Court’s latest ruling doesn’t address the issue of whether the administration’s invocation of the AEA is legal, though multiple lower courts have ruled it is not, because there is no war, “invasion,” or “predatory incursion” going on (only one badly flawed ruling goes the other way on “predatory incursion”). Instead, a 7-2 majority holds only that Venezuelan detainees slated for deportation under the AEA in the Northern District of Texas are entitled to a temporary injunction blocking deportation, because they were not granted adequate notice:
[I]n J. G. G. [the Court’s first ruling on Trump AEA deportations], this Court explained—with all nine Justices agreeing—that “AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief ” before removal. 604 U. S., at ____ (slip op., at 3). In order to “actually seek habeas relief,” a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief. The Government does not contest before this Court the applicants’ description of the notice afforded to AEA detainees in the Northern District of Texas, nor the assertion that the Government was poised to carry out removals imminently. The Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador, see Abrego Garcia v. Noem, No. 25−cv−951 (D Md.), ECF Docs. 74, 77, where it is alleged that detainees face indefinite detention, see Application for Injunction 11. The detainees’ interests at stake are accordingly particularly weighty. Under these circumstances, 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. But it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case. We remand the case to the Fifth Circuit for that purpose.
To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.
In a highly unusual earlier ruling  in this same case, the Supreme Court literally issued an order blocking deportation in the middle of the night. The per curiam majority opinion in today’s ruling recounts the circumstances of that previous episode, and its relevance to the current decision. The combination of that earlier ruling and today’s decision reflects the majority’s growing distrust of the Trump Administration’s handling of AEA – and perhaps other – deportations. Note the reference to the Administration’s refusal to return an illegally deported migrant in the Abrego Garcia case.
I could be wrong, and my record as a Supreme Court prognosticator is far from perfect. But I think when the Court does review the Administration’s use of the AEA more fully, they are unlikely to be deferential. In a concurring opinion, Justice Kavanaugh argues the Court should immediately move to resolve the broader issues at stake, in this very case. All or most of the other justices must have disagreed. But it seems likely these issues will return to the Court sooner or later.
In a forceful dissent joined by Clarence Thomas, Justice Samuel Alito disputes the majority’s characterization of the facts (contending, among other things, that deportation wasn’t really imminent) and argues the Supreme Court lacked jurisdiction to consider the case at this time. I will not go into these points in detail. But I think the majority’s account is more persuasive, and also that the Administration does not deserve the benefit of the doubt in such matters, given their earlier shenanigans in Abrego Garcia, and at least one of the AEA cases.
Justice Alito also argues that class action certification is inappropriate in a habeas case, like this one. I will leave that issue to habeas and class action experts, except to note that multiple lower courts have certified habeas classes in AEA cases, and doing so may be the only way to ensure meaningful due process for detained migrants threatened with deportation.
For the moment, as Georgetown Prof. Steve Vladeck notes,”[b]ecause lower courts have blocked use of the act in every other district in which the president has sought to invoke it, that means it’s effectively pausing all removals under the act until the 5th Circuit – and, presumably, the Supreme Court itself – conclusively resolves whether they’re legal and how much process is due if so.” The legal battle over Trump’s invocation of the AEA will surely continue, and I will have more to say about it in due time.
