Supreme Court Issues Unusual Order in Alien Enemies Act Deportation Case

Last night, the Supreme Court issued a very unusual order in an Alien Enemies Act deportation case. Here it is in its entirety:

There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently
pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. 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. See 28 U. S. C. §1651(a). Justice Thomas and Justice Alito dissent from the Court's order. Statement from Justice Alito to follow.

As I write these words (Saturday morning), we do not yet have have Justice Alito's statement, and therefore do not yet know why he and Thomas dissented.

What do we make of this? I largely agree with the analysis of Georgetown Prof. Steve Vladeck. After providing a helpful overview of the AEA litigation to date, he writes:

Obviously, there's still a lot we don't know. But at least initially, this strikes me as a massively important—and revealing—intervention by the Supreme Court, for at least three reasons:

First, the full Court didn't wait for the Fifth Circuit—or act through the individual Circuit Justice (Justice Alito).2 Even in other fast-moving emergency applications, the Court has often made a show out of at least appearing to wait for the lower courts to rule before intervening—even if that ruling might not have influenced the outcome. Here, though, the Court didn't wait at all; indeed, the order specifically invites the government to respond once the Fifth Circuit weighed in—acknowledging that the Fifth Circuit hadn't ruled (and, indeed, that the government hadn't responded to the application in the Supreme Court) yet. This may seem like a technical point, but it underscores how seriously the Court, or at least a majority of it, took the urgency of the matter….

Second, the Court didn't hide behind any procedural technicalities. One of the real themes of the Court's interventions in Trump-related emergency applications to date has been using procedural technicalities to justify siding with the federal government—including in J.G.G. itself (the first AEA ruling). One could've imagined similar procedural objections to such a speedy intervention, on a class-wide basis, in last night's ruling. (Indeed, I suspect some of those objections are forthcoming in Justice Alito's impending dissenting opinion.) Here, though, the Court jumped right to the substantive relief the applicants sought—again, reinforcing not just the urgency of the issue, but its gravity.

Third, and perhaps most significantly, the Court seemed to not be content with relying upon representations by the government's lawyers. In the hearing before Chief Judge Boasberg, Drew Ensign had specifically stated, on behalf of the government, that "no planes" would be leaving either Friday or Saturday. True, the government hasn't formally responded in the Supreme Court, but the justices (or at least their clerks) would have been well aware of the exchange—indeed, some of the clerks were likely listening to the hearing as it happened. In a world in which a majority of the justices were willing to take these kinds of representations at face value, there might've been no need to intervene overnight Friday evening; the justices could've taken at least all day Saturday to try to sort things out before handing down their decision.

But this case arose only because of the Trump administration's attempt to play Calvinball with detainees it's seeking to remove under the Alien Enemy Act. The Court appears to be finally getting the message—and, in turn, handing down rulings with none of the wiggle room we saw in the J.G.G. and Abrego Garcia decisions last week. That's a massively significant development unto itself—especially if it turns out to be more than a one-off.

Whether it turns out to be more than "one-off" remains to be seen. But, for the moment, I think Vladeck is right to highlight the Court's growing frustration with the Trump Administration.

I do differ with Vladeck on one point: It is not entirely true that "no court has yet to rule on whether the government even has the power to use the Alien Enem[ies] Act this way in the first place." The AEA can can only be used to detain and deport immigrants in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." In the DC Circuit ruling previously vacated by the Supreme Court on procedural grounds, Judge Karen LeCraft Henderson' opinion for the DC Circuit clearly indicates there is no war, invasion, or predatory incursion occurring, though without providing a completely definitive ruling.

I agree with her position. In earlier writings, have emphasized that the meaning of "invasion" in the AEA tracks the meaning of the same term in the Constitution. If courts were to accept the Trump argument that illegal migration and drug smuggling qualify as "invasion," that would have dire  implications, such as enabling states to "engage in war" in response and the federal government to suspend the writ habeas corpus (including for US citizens) virtually anytime it wants, thereby enabling it to detain people without due process.

The Supreme Court's own previous decision also resolved an important substantive question, by unanimously rejecting the Trump Administration's position a presidential invocation of the AEA is immune from judicial review.

While we do not yet have a complete and definitive judicial ruling on the applicability of the AEA to Trump's efforts to detain Venezuelan migrants, the DC Circuit and earlier Supreme Court ruling indicate widespread (and well-justified) judicial skepticism of the Trump position.

Last night's Supreme Court decision suggests we may get a more definitive ruling on the merits sooner rather than later.

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