The Supreme Court issued a late-night ruling this weekend, halting deportations, for now, under the Alien Enemies Act.
The Supreme Court in the early hours of Saturday told the Trump administration not to take any action to deport Venezuelan men based in Texas it alleges are gang members.
The court did not grant or deny an application filed by lawyers for the detainees, but effectively hit pause on the case, which affects people currently held within the jurisdiction of the Northern District of Texas.
“The government is directed not to remove any member of the putative class of detainees from the United States until further order of this court,” the brief order said.
Two conservative justices, Clarence Thomas and Samuel Alito, disagreed with the Supreme Court decision, the order noted.
Mark Joseph Stern at Slate discussed why the ruling was extraordinary:
There are three remarkable aspects of the court’s decision. First, it acted with startling speed—so quickly, in fact, that it published the order before Alito could finish writing his dissent; he was forced to note only that a “statement” would “follow.” It is a major breach of protocol for the Supreme Court to publish an order or opinion before a dissenting justice finishes writing their opinion, one that reflects the profound urgency of the situation. Relatedly, awkward phrasing in court’s order may imply that Alito—who first received the plaintiffs’ request—failed to refer it to the full court, as is custom, compelling the other justices to rip the case away from him. No matter what, exactly, happened behind the scenes, it’s clear that a majority would not let Alito hold up speedy action. It also acted before the U.S. Court of Appeals for the 5th Circuit had a chance to step in, and before the Department of Justice had an opportunity to respond to the plaintiffs. These highly abnormal moves also reveal a desire to act fast.
Second, it is plain as day that the Supreme Court simply did not trust the Trump administration’s claims that it would not deport migrants over the weekend without due process. If the court did believe these representations, it would not have acted in such a rapid and dramatic fashion; it could have waited for the lower courts to sort through the matter, confident no one would face irreparable harm in the meantime. The majority’s decision to wade in straightaway points to a skepticism that the Justice Department was telling the truth. It’s damning, too, that the majority did not even wait for DOJ to file a brief with the court before acting. The only plausible explanation for the court’s order is that a majority feared the government would whisk away the migrants to El Salvador if it did not intervene immediately. That fear is well-grounded, since we now have substantial evidence that the government lied to a federal judge last month to thwart a court order stopping deportation flights.
Finally, and perhaps most obviously, it’s critical that only Thomas and Alito noted their dissents. When the court takes emergency action, justices don’t have to note their votes, but they usually do; we can probably assume that this order was 7–2. That would mean that Chief Justice John Roberts—along Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—joined this rebuke to the Trump administration. Until now, all of these justices have, to varying degrees, treated the president with kid gloves, handing him a series of narrow wins on procedural grounds that avoided direct collision between the branches. That accommodation came to an abrupt stop on Saturday.
Joyce Vance discussed the ruling and what may be coming with Katie Phang on MSNBC this Saturday:
PHANG: And as we mentioned at the top of the show in an overnight decision, the United States Supreme Court took a pause on the deportation of foreign nationals from the United States pursuant to convicted felon Donald Trump’s invocation of the Alien Enemies Act.
The one paragraph order saying “The government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.”
Now that 7-2 decision shocking many as the majority did include Justices Amy Coney Barrett, Neil Gorsuch, John Roberts, and get this, Brett Kavanaugh.
Alito and Thomas, to no one’s surprise, dissented from the court’s order, maybe because they’re busy planning their lavish and luxury summer vacation plans via private jet and super yachts. […]
Let’s start with that 1 a.m. ruling. I’m happy to see the SCOTU works at 10 a.m. on a Friday night, but it’s a temporary pause number one, number 2, Joyce, it only pertains to the putative class of detainees.
Explain to our viewers what that means when it’s just a putative class of detainees.
VANCE: Right, it’s such a confusing situation.
There’s been an effort by the ACLU, which represents many of these detainees, to certify a class so that rather than going person by person to seek relief, they can do it all in one big grouping.
The Supreme Court put a little bit of a monkey wrench into that when they ordered that these had to be individualized habeas cases, and that’s why there’s this back and forth with the ACLU trying to play whack a mole, going to court literally in every district where they get wind that something is amiss, which is what happened yesterday when they learned that ICE appeared to be putting detainees together, so that they could deport them from the Bluebonnet facility in Texas, in a different district in Texas from the one district where a judge had Entered an injunction prohibiting further deportations.
In a way, the Supreme Court’s chickens are coming home to roost here. They’re having to deal with these midnight petitions, because instead of a nationwide ban on these deportations while they decide the extent of the Alien Enemies Act and whether the government can use it for these deportations, they’re now having to do it in all 94 federal districts.
PHANG: Joyce, what happens though with the fact that the Fifth Circuit, which is the appellate federal appellate circuit between SCOTUS and this district court in Texas, the 5th Circuit with a panel of three and a procurum actually said we don’t have subject matter jurisdiction, and so they didn’t give a stay themselves to the plaintiffs that are kind of fighting it out in the district court in front of that judge.
VANCE: Well, that’s right, and this will be fought in a number of different forms. The ACLU has indicated that they intend to bring in essence try to certify a class in each of the 94 federal districts.
So there’s this possibility of different rulings in different places. Ultimately, the Supreme Court will have to decide the Alien Enemies Act issue for once and for all, but until then we’re going to see a variety of different procedural motions in different circuits in different district courts, and it’s something of a mess while people’s lives and futures are at stake.