SCOTUS, in a 7-2 vote, blocks AEA removals from northern Texas during litigation

The current notice being given by the Trump administration to those it wants to deport under Trump's AEA proclamation "surely does not pass muster," the court held.

On Friday afternoon, the U.S. Supreme Court, on a 7-2 vote, blocked the Trump administration from deporting people from the Northern District of Texas under President Donald Trump’s Alien Enemies Act proclamation while litigation proceeds.

Only Justice Sam Alito, joined by Justice Clarence Thomas, dissented from the decision addressing Trump’s March 14 order invoking the wartime power to quickly remove people the Trump administration has decided are members of Tren de Aragua, a Venezuelan gang.

The Supreme Court, in an unsigned, per curiam opinion, also importantly ruled that that the notice being provided by the Trump administration to those it is seeking to remove under the AEA proclamation — even after the Supreme Court’s prior order requiring enough notice that such people could “actually” challenge their removal — is not sufficient.

“Under these circumstances, notice 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 stated bluntly. The court left open what additional process would be required, holding that the lower courts would have to make that decision “in the first instance” because “it is not optimal for this Court, far removed from the circumstances on the ground,” to do so.

The Supreme Court also addressed a key argument being made by the Trump administration in opposing class certification in these habeas challenges. The Justice Department has argued that class certification is inappropriate because the government will not “generally” deport someone who has a habeas petition pending. As such, DOJ claims, named petitioners in any action don’t face deportation and are, therefore, not on similar footing to the rest of the would-be class. That argument is rejected, the court held.

The unusual — and unusually sharp — ruling from the justices was the second time the court blocked deportations under the AEA from the Northern District of Texas. The first time was the temporary overnight order issued April 19 blocking deportations while the court could consider the request it ruled on Friday. Alito, joined by Thomas, dissented from that decision as well.

While technically only addressing the Northern District of Texas, the Supreme Court’s decision to grant an injunction here throughout the remainder of the litigation will likely have a ripple effect nationwide. Additionally, the decisions that the government’s current AEA notice is insufficient and that one of DOJ’s key arguments against class certification is rejected are now nationwide precedent that we will quickly see in filings across the nation.

Friday’s unsigned opinion made clear that the court was not ruling on and had not ruled previously on “the underlying merits of the parties’ claims regarding the legality of removals under the AEA.“

But, it did grant certiorari to vacate the decision of the U.S. Court of Appeals for the Fifth Circuit, which had dismissed the parties’ appeal out of the Northern District of Texas as premature, and issued an injunction blocking removals while the lower courts consider the merits of the case. The appeals court should have heard the case, the Supreme Court ruled on Friday.

“A district court’s inaction in the face of extreme urgency and a high risk of ‘serious, perhaps irreparable,’ consequences may have the effect of refusing an injunction,“ which was mean the appeals court had jurisdiction to hear the appeal, the Supreme Court wrote, noting the “particularly weighty“ interests here given that the Trump administration has told the court in Kilmar Abrego Garcia’s case that “it is unable to provide for the return of an individual deported in error” to the CECOT prison in El Salvador.

Justice Brett Kavanaugh, while “agree[ing] with” the court’s injunction, wrote separately to say that he wanted the Supreme Court to take up the merits of the challenge now. “The circumstances call for a prompt and final resolution, which likely can be provided only by this Court,” he wrote. “I would prefer not to remand to the lower courts and further put off this Court’s final resolution of the critical legal issues. … I would grant certiorari, order prompt briefing, hold oral argument soon thereafter, and then resolve the legal issues.“

Alito was particularly combative in dissent, condescendingly writing about “[t]he Court’s theory of jurisdiction, as I understand it“ — in which the lawyers for the petitioners went to the Fifth Circuit and then the Supreme Court after they were not getting rulings from lower courts, despite providing those courts with information suggesting that deportations could be imminent — and then asserting that theory was based on a “mischaracterization of what happened in the District Court.”

Ultimately, Alito’s reasoning would mean that if the lawyers for people who the government is trying to deport with insufficient process (if not, as multiple judges have found, altogether illegally) do so in a way that moves the process along too quickly for him, there can be no appellate jurisdiction until the district court judge actually rules — even if that is too late.

Additionally, Alito wrote — again, joined by Thomas — that “it is doubtful that class relief may be obtained in a habeas proceeding,“ a ruling that would undermine the approach taken in challenges across the country since the Supreme Court’s April 7 order holding that AEA challenges have to be brought in habeas.

Here, Alito noted, U.S. District Judge James Hendrix — a Trump appointee — denied class certification on May 9. Alito then went on to criticize his colleagues’ action Friday as “all the more extraordinary because “the Court issues ‘preliminary relief’ to a putative class that the District Court has explicitly refused to certify, and it does so without providing any substantive analysis suggesting that the District Court’s analysis of the class certification issue was incorrect.”

Despite his apparent disagreement with the court, Alito seemed to ignore a key aspect of the per curiam opinion and Hendrix’s underlying ruling. As the Supreme Court noted, “By its own terms, the District Court’s order is ‘automatically vacated’ by our order granting a writ of certiorari.“¹

In any event, on Friday at least, Alito lost.

AEA removals will not happen out of the Northern District of Texas for now.

1. Literally. Hendrix’s class certification decision stated, “In the event that the Supreme Court grants the pending petition for a writ of certiorari, this Order is automatically vacated.” The Supreme Court did so. The order is “automatically vacated.”