WASHINGTON — The Supreme Court ruled Monday the Trump administration may use a wartime law to deport alleged members of a foreign crime gang, but only if they are given the right to challenge the government’s claim.
By a 5-4 vote, the court set aside the orders of judges in Washington who said the Trump administration had overstepped its power.
The decision is a victory for Trump and setback for federal judges who sought to check the check the president’s power.
The court majority, in an unsigned opinion, said a group of alleged Venezuelan gang members facing deportation to El Salvador may appeal, but only before a federal judge in Texas, where they are held.
“The detainees’ rights against summary removal are not currently in dispute,” the court said. The “detainees must receive notice after the notice of this order that they are subject to removal. … 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.”
This was the Trump administration’s fallback position.
It had said initially that these detained men had no rights to appeal because the president had the wartime power under the Alien Enemies Act of 1798 to deport “hostile” aliens.
The court did not rule directly on that issue, but instead said the detainees may appeal only where they are being held, which in this instance is south Texas.
“Today’s order … confirms that the detainees subject to removal orders under the Alien Enemies Act are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge,” the majority said.
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh formed the majority.
Monday’s order does not focus on the nearly 200 men who were deported to El Salvador on March 15. Instead, it sets out the legal rules for the remaining detainees who may face deportation.
In dissent were Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson and Amy Coney Barrett.
“The Government’s conduct in this litigation poses an extraordinary threat to the rule of law,” Sotomayor wrote in dissent. “That a majority of this Court now rewards the government for its behavior with discretionary equitable relief is indefensible. We, as a Nation and a court of law, should be better than this.”
Jackson said she questioned the “majority’s choice to intervene on the eve of the District Court’s preliminary-injunction hearing without scheduling argument or receiving merits briefing. This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.”
She referred to Judge James Boasberg, who was considering issuing a preliminary injunction to block further deportations.
Under U.S. immigration law, the government may deport migrants with a criminal record.
But Trump and advisers decided to bypass that legal system and instead order the swift and nearly secret deportation of hundreds of Venezuelans who had tattoos that suggested they were members of a criminal gang.
They claimed a wartime power for the president by invoking the Alien Enemies Act of 1798, adopted when President John Adams feared a war with France, which had been seizing American ships.
When there is a “declared war between the United States and any foreign nation..or any invasion … is threatened by any foreign government,” it says the president may make “a public proclamation of the event” and order that “subjects of the hostile nation” be “apprehended … and removed as alien enemies.”
The law was invoked during the War of 1812 and World Wars I and II.
On March 15, it was invoked for a fourth time when Trump, with no public notice, signed a proclamation “regarding the invasion of the United States by Tren de Aragua,” a criminal terrorist gang which it said was “conducting irregular warfare and undertaking hostile actions against the United States.”
Based on that claim, administration officials were preparing to fly more than 200 Venezuelans from Texas to El Salvador when a federal judge in Washington hastily convened a Saturday afternoon hearing.
ACLU attorney Lee Gelernt sued on behalf of five men who said they were not members of crime gang but feared they were about to be deported to a brutal prison in El Salvador.
Boasberg questioned the legal basis for the deportations, and he issued a temporary restraining order to put them on hold if they were based on the claim they were “alien enemies.”
But the impact of his order was limited.
While the five men who sued remained in Texas, the three planeloads of prisoners were sent to El Salvador and shown behind bars with their heads shaved and their shirtless tattoos on display.
Some of deported men had “final orders of removal” under the immigration laws, but more than hundred others were deported as alien enemies.
The judge was troubled that the administration had largely ignored his order, but Trump’s lawyers said they were troubled the judge sought to interfere with the president’s wartime power to protect the nation’s security.
They appealed to the D.C. Circuit Court seeking to have the judge’s order set aside, but lost by a 2-1 vote.
Appealing to the Supreme Court, Trump’s lawyers said the judges had no authority to stand in the way.
“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country—the President…or the Judiciary,” Trump’s acting Solicitor Gen. Sarah Harris wrote in her appeal. “The Constitution supplies a clear answer: the President.”
The ACLU attorney urged the court to keep the restraining order in place.
“It is becoming increasingly clear that many of the men (perhaps most) were not actually members” of the crime gang but “instead were erroneously designated” because of their tattoos, Gelernt wrote in response to the appeal.
If the court throws out the judge’s order, he said, it “would allow the government to immediately begin whisking away anyone it unilaterally declares to be a member of a criminal gang to a brutal foreign prison.”