Justices, Split 5-4, OK Deportations Under 1798 Alien Enemies Act

The Supreme Court issued a 5-4 decision tossing out a closely watched district court decision that blocked President Trump’s attempt to use the 227-year-old law Alien Enemies Act to deport many people without due process. Republican appointee Justice Amy Coney Barrett crossed over to dissent with the three Democratic-appointed justices. Though the decision in Trump v. J.G.G. is a win for Trump, it is not a total victory. The court did not express an opinion on whether the Alien Enemies Act actually permits Trump to deport anyone. It also says that, before anyone is deported under this law, that person must be given “notice and an opportunity to challenge their removal," Vox reports. District Judge James Boasberg had issued a blanket order that temporarily blocked all deportations under the Alien Enemies Act. Those deportations can now resume.

The Supreme Court’s decision means that anyone Trump targets must bring a “habeas” proceeding, a process that ordinarily can be used only by a single person to challenge a detention.

As Justice Sonia Sotomayor warns in dissent, “individuals who are unable to secure counsel or who cannot timely appeal an adverse judgment rendered by a habeas court, face the prospect of removal directly into the perilous conditions of El Salvador’s [Center for Terrorism Confinement], where detainees suffer egregious human rights abuses.” The administration has sent several hundred men accused of belonging to the Venezuelan gang Tren de Aragua to that prison. Habeas proceedings must be brought in the place where the person seeking relief is detained. Thus far, the Trump administration has transferred prisoners it intends to deport under the Alien Enemies Act to Texas, which is located in the U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit is the most right-wing court in the federal appellate system. If someone brings a habeas suit there, the conservative court could hand down a precedent that means any habeas proceedings challenging these deportations would fail. Separately, the Supreme Court gave the Trump administration a temporary reprieve from lower-court orders requiring it to bring back by midnight Monday a Salvadoran man officials deported in error to a prison in El Salvador.