Supreme Court Pumps The Brakes On Trump’s Use Of The Alien Enemies Act

The Supreme Court has delivered a clear rebuke to the Trump administration's attempt to weaponize the Alien Enemies Act, issuing a slightly more detailed ruling that follows up on last month's midnight emergency order. That emergency ruling came as the administration was literally loading detainees onto buses headed to airports, racing to deport them before courts could intervene.

Justice Alito filed a dissent to that ruling a couple of days later, whining about the procedural nature of it and (falsely, it turns out) claiming that there was no rush and that detainees weren't going to be trafficked to a foreign gulag in the meantime.

Now the Supreme Court has come out with a more detailed ruling in the case, per curiam (meaning none of the Justices put their names directly to it) saying that the Government is simply wrong to use the Alien Enemies Act like this.

The ruling starts out by highlighting just how wrong Alito was in pretending that the government was in no rush to send the detained Venezuelans to a Salvadoran gulag, while noting the stance the Trump admin has taken in the Abrego Garcia case that once they've removed someone from the country the courts have no jurisdiction any more:

We understood the Government to assert the right to remove the detainees as soon as midnight central time on April 19. The Government addressed the detainees' allegations on April 18 only at an evening hearing before the District Court for the District of Columbia, where the detainees had separately sought relief. The Government guaranteed that no putative class members would be removed that day. Tr. of Proceedings in J. G. G. v. Trump, No. 25-cv-766, ECF Doc. 93, p. 9. But it further represented that, in its view, removal of putative class members as soon as the next day would be consistent with" its due process obligations, and it reserve[d] the right" to take such action. Id., at 26; see id., at 16 (explanation by the court that tomorrow . . . starts at 12:01 a.m."). Evidence now in the record (although not all before us on April 18) suggests that the Government had in fact taken steps on the afternoon of April 18 toward removing detainees under the AEA-including transporting them from their detention facility to an airport and later returning them to the facility. See Supp. App. to Reply 1a-5a. Had the detainees been removed from the United States to the custody of a foreign sovereign on April 19, the Government may have argued, as it has previously argued, that no U. S. court had jurisdiction to order relief. See Application To Vacate Injunction in Noem v. Abrego Garcia, No. 24A949 (Apr. 7, 2025), pp. 11-20.

But, as the seven justices who signed on note, that's not at all how this works, and it highlights that the administration's posturing in other cases show how important this issue is, and why it's fine for the Supreme Court to take it up so quickly:

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.

And then, most importantly, the Supreme Court makes it clear that giving detainees just 24 hours to try to respond to a notice of removal is not actually due process:

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.

That's the key line in the latest ruling.

But, still, it believes the case should now move through a more proper process in the lower courts, but that requires the US government to allow for those cases to move properly, rather than just throwing these people on airplanes. Thus, it sends the case back to the lower courts while making it clear no one should be removed while those courts handle the detainees' due process.

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.

Justice Alito, along with his sidekick Justice Thomas, unsurprisingly dissents. As per usual, they pretend that this is entirely about the procedural aspects of the case and that the Supreme Court has no jurisdiction over the case. Alito claims it's unfair to expect a district court to respond so quickly and that he just doesn't see what all the fuss and rush is about. The majority decision points out (in nicer terms) that he's living in a fantasy world:

First, we reject the dissent's characterization of the events that transpired on April 18, which lead it to question our jurisdiction. District courts should approach requests for preliminary relief with care and consideration, see post, at 3-4 (ALITO, J., dissenting), but exigent circumstances may impose practical constraints. Preliminary relief is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." Lackey v. Stinnie, 604 U. S. ___, ___ (2025) (slip op., at 6) (quoting University of Tex. v. Camenisch, 451 U. S. 390, 395 (1981)). The purpose of such relief is merely to preserve the relative positions of the parties" pending further proceedings. Lackey, 604 U. S., at ___ (slip op., at 6) (quoting Camenisch, 451 U. S., at 395).

In this case, the record before the District Court, although limited, indicated that removals of putative class members were likely imminent. Contra, post, at 4-6 (ALITO, J., dissenting). The detainees attached four declarations to their emergency motion for a TRO. In one, for example, an attorney relayed a detainee's report that immigration officers had informed them that they will be deported either today or tomorrow." ECF Doc. 30-1. In a second, a nonprofit director described conversations with family members of detainees and linked to a video of detainees holding notices of removal as evidence that detainees were being removed."

Importantly, the relevant question for purposes of our jurisdiction is whether, at the time this Court was called upon to intervene, the District Court's inaction had the effect of refusing an injunction. In their application to this Court, the detainees represented that [m]any individuals [had] already been loaded on to buses, presumably headed to the airport." Application for Injunction 1. Shortly thereafter, the Government represented on the record in federal court that it reserved the right to remove detainees after midnight. We had the power to issue injunctive relief to prevent irreparable harm to the applicants and to preserve our jurisdiction over the matter

Perhaps most tellingly, Justice Kavanaugh's concurrence cuts through the procedural dance, essentially acknowledging that the current system of emergency orders and circuit court ping-pong isn't serving anyone. His suggestion that the Court should just take the case directly highlights both the urgency of the constitutional questions at stake and a growing institutional impatience with the administration's tactics:

The circumstances call for a prompt and final resolution, which likely can be provided only by this Court. At this juncture, I would prefer not to remand to the lower courts and further put off this Court's final resolution of the critical legal issues. Rather, consistent with the Executive Branch's request for expedition-and as the detainees themselves urge-I would grant certiorari, order prompt briefing, hold oral argument soon thereafter, and then resolve the legal issues.

There's still much more to go in this case, but it does appear that a clear majority of the Court is at least somewhat concerned about the way the Trump admin is rushing people onto planes to kick them out of the country without due process, and then you have Alito and Thomas whining in the corner that there's no need to rush, even as detainees were being loaded into buses to take them to the airport.