SCOTUS Ruling on Trump Deportations: Read It For Yourself

SCOTUS issued a 5-4 ruling that declined to hear the merits of Trump’s application of the Alien Enemies Act to deport accused gang members and instead directed the challengers to bring the suit in Texas. The order was unsigned but had a 17-page decent penned by Justice Sotomayor and joined in full or in part by all the female justices of the Supreme Court.

From SCOTUSBlog:

In an unsigned opinion on Monday evening, five of the court’s conservative justices – Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh – indicated that they would “not reach” the plaintiffs’ arguments regarding the application of the AEA to them. Instead, the majority explained, because the relief that they are seeking “necessarily” suggests that their confinement in immigration custody and removal under the AEA is invalid, they must bring their claims as habeas corpus claims – that is, a challenge to the legality of their detention.

The only place that such claims can be brought, the majority continued, is the judicial district where a prisoner is being detained. Because the plaintiffs in this case are now in Texas, rather than in Washington, D.C., the majority concluded, their case cannot be brought in Washington.

The court made clear that – as the government agrees – the plaintiffs, as well as others who may be detained or removed under the AEA, are entitled to be notified “that they are subject to removal under the Act.” Moreover, the court added, addressing an argument made by lawyers for the plaintiffs during oral arguments in the lower courts, the government must provide that notice “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”

Kavanaugh wrote a brief concurring opinion in which he emphasized that “the Court’s disagreement is not over whether the detainees receive judicial review of their transfers—all nine Members of the Court agree that judicial review is available. The only question,” he concluded “is where that judicial review should occur.”

Sotomayor called the court’s conclusions “suspect.” She wrote that the removal of noncitizens to the prison in El Salvador “presented a risk of extraordinary harm to these” plaintiffs. Referring to the case (also pending at the Supreme Court) of a Maryland man whom the government admits was sent to El Salvador as a result of an administrative error, she observed that the government has contended that “even when it makes a mistake, it cannot retrieve individuals from” the prison in El Salvador.

“The implications of the Government’s position,” Sotomayor stressed, “is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise.”

Sotomayor concluded by calling the majority’s decision on Monday “indefensible.” “We, as a Nation and a court of law, should be better than this,” she wrote.

In her separate dissent, Jackson explained that she agreed with Sotomayor but also wrote a separate dissent in which she questioned the majority’s decision to step into the dispute now, immediately before Boasberg had scheduled a hearing on the plaintiffs’ request for a preliminary injunction.

Jackson criticized the majority for addressing these issues on their emergency docket and reaching a “rushed conclusion.” Normally, she said, when the justices weigh in on “complex and monumental issues,” they give the lower courts an opportunity to “address those matters first.” Then, she continued, the court “receives full briefing, hears oral argument, deliberates internally, and, finally, issues a reasoned opinion.” When the court departs from that normal practice, she said, “the risk of error always substantially increases” and it does so without “a record so posterity [may] see how it went wrong.”