Early Friday evening, the Supreme Court issued a pointed decision in the case of a group of Venezuelan detainees who previously faced the imminent risk of being sent to a notorious prison in El Salvador by the Trump administration. In addition to rejecting the administration’s choice to give these detainees only 24 hours notice of their removal, the decision answered a question indirectly posed in the case. Is the highest court in the nation sick of the Trump administration’s bullshit?
The answer, the decision states rather definitively, is yes — at least in immigration cases involving removals under the Alien Enemies Act.
In an eight-page unsigned decision, with only Justices Samuel Alito and Clarence Thomas dissenting, the court firmly rejected how the administration has been using the Alien Enemies Act to quickly remove Venezuelan and Salvadoran immigrants with little to no due process while also effectively calling the administration liars, in so many words.
The decision comes in the case of A.A.R.P. v. Trump (the plaintiff is a Venezuelan man, not the senior citizen interest group) where a group of Venezuelan immigrants detained at the Bluebonnet Detention Facility in Anson, Texas, filed an emergency application to the Supreme Court to block their imminent removal after lower courts refused them April 18. The court responded with an extraordinarily rare late-night decision halting their removal at 12:52 a.m. April 19 and took up the case for further review.
Friday’s decision, as part of the court’s further review, states that the government misrepresented the facts on the ground at Bluebonnet at the time. The justices “understood” that the administration asserted “the right to remove the detainees as soon as midnight central time on April 19,” according to the decision. But also saw that, in a district court hearing April 18, the administration “guaranteed that no putative class members would be removed that day.”
Venezuelan immigrants detained at the Bluebonnet Detention Center in Anson, Texas, form an S.O.S. in the courtyard. Brandon Bell via Getty Images
This, however, was false. “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,” the decision states.
Then the decision notes that had the court not intervened, the administration could claim no power to return them from the CECOT prison in El Salvador and no court could force them to do so, as it has done in the case of wrongly removed detainee Kilmar Abrego Garcia.
“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,” the decision states.
This is an incredibly pointed rebuke of the administration’s failure to obey a Supreme Court order to “facilitate” Abrego Garcia’s “release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”
Later, the decision again notes the administration’s position on not returning Abrego Garcia when it declares that the administration’s choice to offer notice of removal “roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.” The court previously ruled in the case of J.G.G. v. Trump that the government must provide notice of removal to allow detainees to contest their detention through writs of habeas corpus.
The threat of removal for the men who brought the case “are accordingly particularly weighty,” since the administration “has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador, where it is alleged that detainees face indefinite detention.”
Here the court says that the administration’s efforts to deny due process to detained immigrants by offering only rudimentary notice of removal is undermined by their efforts to completely eliminate the possibility of due process by shipping them off to a foreign prison. The court’s assertion that they face “indefinite detention” further drives home the point that this is no ordinary prison, as no one detained at CECOT has seen a day in court and the only prisoner ever known to have stepped outside of it is Abrego Garcia when he met with Sen. Chris Van Hollen (D-Md.).
Clearly, the court doesn’t think highly of the administration’s scheme to evade due process, reject the power of courts to compel the return of detainees sent overseas and prevent detainees from contesting their detention through habeas corpus.
Kilmar Abrego Garcia, left, is the only person known to see the outside of El Salvador’s CECOT prison when he met Sen. Chris Van Hollen (D-Md.). via Associated Press
And yet, that’s not the end of the court’s rejection of the administration’s actions under the Alien Enemies Act. The court also rejected the ruse the administration has been using to try to stop courts from designating all detainees subject to the Alien Enemies Act as a class of people facing a similar predicament when an individual or group of individuals brings a case.
To avoid this class certification, which could lead to protection from removal for all men detained in a judicial district, the administration has been claiming that it will not subject the individual detainees who bring a suit to removal proceedings while their case moves forward. This, they argue, means that the petitioners and the rest of the detainees no longer face a similar threat of removal and are, therefore, not in a class together.
“[W]e reject the proposition that a class-action defendant may defeat class treatment, if it is otherwise proper, by promising as a matter of grace to treat named plaintiffs differently,” the decision states. “And we are skeptical of the self-defeating notion that the right to the notice necessary to ‘actually seek habeas relief,’ must itself be vindicated through individual habeas petitions, somehow by plaintiffs who have not received notice.”
All of these rebukes and rejections show that the court is sick and tired of the games the administration is playing to evade the law and the Constitution.
That point is driven home by the effect of the court’s decision, which requires the administration to provide real notice of removal exceeding 24 hours and prevents the removal of anyone under the Alien Enemies Act until the Fifth Circuit Court of Appeals, which covers the Bluebonnet Detention Facility, and the Supreme Court rules on exactly how much time must be given.
While only applying to the Fifth Circuit, this order will prevent any further removals under the Alien Enemies Act anywhere in the country as the court has made it plain that it does not trust the administration to do so without breaking the law.
What the court did not do in this case is rule on whether the administration rightly invoked the Alien Enemies Act, which is to remove “alien enemies” in the event of an “invasion” or “predatory incursion.” That question is still moving through the lower courts, where three judges have rejected the administration’s use of the law while one has upheld it.
That issue will surely make its way to the Supreme Court this year. Based on the court’s decision on Friday, the administration is burning through any goodwill for the court to treat its arguments as operating in any normal fashion.
