The Supreme Court on Monday held that the Trump administration could use wartime laws to accus members of foreign criminal gangs of the country, but only if they were given the right to challenge the government’s claims.
By a 5-4 vote, the court put aside the orders of a Washington judge who said the Trump administration had surpassed its power.
The decision is a victory for Trump and a setback for a federal judge who tried to check the president’s power.
The court majority said in an unsigned opinion that a group of Venezuelan gang members facing deportation to El Salvador might appeal, but that might appeal.
“The detainee’s right to deleting a summary is not currently a dispute,” the court said. “After notification of this order, detainees must receive notice that they are subject to deletion. … Notices must be provided within a reasonable time in such a way that they can actually seek popular relief at the appropriate venue before such removal is made.”
This was the Trump administration’s fallback position.
Initially, these detained men said they had no right to appeal to deport “hostile” aliens, as they had wartime power under the alien enemy law of 1798.
The court did not directly control the matter, but instead said detainees could appeal only where they were detained.
“Today’s order confirms that detainees who are subject to an alien enemy removal order are entitled to the opportunity to challenge notification and removal. The only question is which court will resolve the challenge,” the majority said.
Secretary John G. Roberts Jr. and Clarence Thomas of Justice, Samuel A. Alito Jr., Neil M. Golsch and Brett M. Kavanaugh formed the majority.
Monday’s order does not focus on nearly 200 men deported to El Salvador on March 15th. Instead, it sets out legal rules for the remaining detainees who may face deportation.
On the other hand, there were Justice Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson and Amy Connie Barrett.
“The actions of the government in this case pose an extraordinary threat to the rule of law,” Sotomayor wrote that he opposed. “That the majority of this courts are remunerating the government for actions that involve discretionary, fair relief. We should be better than this, as a nation and as a court.”
Jackson said, “It questioned the majority’s choice to intervene the night before a preliminary district court hearing without scheduling discussions or receiving a merit briefing. This nighttime approach to the Supreme Court’s work is not just false induction, it is also dangerous.”
She mentioned Judge James Boasberg, who was considering issuing a preliminary injunction to block further deportation.
Under US immigration law, governments can deport immigrants with criminal records.
But Trump and his advisors decided to bypass the legal system and instead order the swift and almost secret deportation of hundreds of Venezuelans who had tattoos suggesting they were members of criminal gangs.
They asserted wartime forces for the president by invoking the alien enemy law of 1798, adopted when President John Adams was afraid of a war with France, which had seized American ships.
“A war declared between the United States and foreign countries.. or any invasion is threatened by foreign governments,” the president says that he may make a “official declaration of events” and order “the subject of the hostile country” to be “arrested and removed as alien enemies.”
The law was invoked during the wars of 1812 and during the wars of World War 1 and II.
On March 15th, the fourth time Trump called out “a rigged an irregular war and took hostile action against the United States” without public notice “in relation to the US invasion by Tren de Aragua.”
Based on that allegation, executive officials were preparing to fly more than 200 Venezuelans from Texas to El Salvador when a federal judge in Washington rushed to convened a Saturday afternoon hearing.
ACLU lawyer Lee Gererund sued on behalf of five men who said they were not members of a criminal gang, but feared they were about to be deported to a brutal prison in El Salvador.
Boasberg questioned the legal basis for deportation, and he issued a temporary restraining order to hold them off if they claim they are “an alien enemies.”
However, the impact of his orders was limited.
While the five men who sued remained in Texas, the three prisoners’ flat roads were sent to El Salvador, where their heads were shaved and shirtless tattoos appeared behind a bar with their display.
Some of the deported men had “final removal orders” under the immigration law, while more than 100 other people were deported as alien enemies.
The judge was troubled by the administration’s largely ignoring his orders, but Trump’s lawyers said the judge’s attempts to hamper the president’s wartime powers to protect the country’s security.
They appealed to the DC Circuit Court to seek to obtain the judge’s order, but lost by 2-1 votes.
Trump’s lawyers said the judges were not authorized to get in the way, as they were suing the Supreme Court.
“This case presents a fundamental question as to who will decide how to carry out sensitive national security-related activities in this country. President…or Judicial Law.” “The Constitution provides a clear answer: President.”
ACLU lawyers urged the court to maintain the restraining order.
“It’s becoming increasingly clear that many men (probably most) of the crime gang were not actually members, but instead “were misspecified” because of tattoos.”
If the court abandons the judge’s order, he said, “The government will allow people who unilaterally declare themselves members of criminal gangs to immediately begin to foam up those who declare to brutal foreign prisons.”
