SCOTUS Keeps Hold On Deportation of TdA Under Alien Enemies Act
So it continues. Millions flow in illegally, but only a relative trickle can flow out. This is an untenable situation.
The deep damage from the Biden administration’s treasonous open borders policy, which deliberately imported millions of illegal aliens, including large numbers of criminals and gang members, is playing out as the Trump administration tries to undo the damage and danger.
The numbers are so large that they overwhelm the system. Trump tried to address the problem as to a particularly vicious gang, Tren de Aragua (TdA), by invoking the Alien Enemies Act (AEA), which allows summary removal. That effort has been stymied by multiple courts, incuding the Supreme Court, ruling that persons subject to removal under the AEA are entitled to due process before removal. Depending what the due process looks like may render deportation efforts futile – you can’t have millions of trials, even if they are truncated proceedings.
Is the Constitution a suicide pact? We’re in the process of finding out.
The Supreme Court ruled earlier today that the hold it previously put on efforts to remove TdA via the AEA will stay in place. A lot of the Per Curiam Opinon related to jurisdiction, including the Supreme Court’s jurisdiction, to decide these matters.
The bottom line is the Supreme Court put everything on hold, and told the 5th Circuit to figure out what type of due process the TdA members should get. Removal of TdA members through other statutory authority, other than AEA, could continue:
The application for an injunction pending further proceedings is granted. The motion for leave to file a supplemental appendix under seal is also granted. Additionally, applicants suggested this Court treat the application as a petition for a writ of certiorari; doing so, the petition is granted. The judgment of the Fifth Circuit is vacated, and the case is remanded to the Fifth Circuit. In resolving the detainees’ appeal, the Fifth Circuit should address (1) all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs’ underlying habeas claims that the AEA does not authorize their removal pursuant to the President’s March 14, 2025, Proclamation, and (2) the issue of what notice is due, as to the putative class’s due process claims against summary removal. The Government is enjoined from removing the named plaintiffs or putative class members in this action under the AEA pending order by the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
The Government may remove the named plaintiffs or putative class members under other lawful authorities.
Justice Alito wrote a dissent, joined by Justice Thomas:
I cannot join the decision of the Court. First and most important, we lack jurisdiction and therefore have no authority to issue any relief. Second, even if we had such authority, the applicants have not satisfied the requirements for the issuance of injunctive relief pending appellate review. Third, granting certiorari before any decision on the merits has been made by either the District Court or the Court of Appeals is unwarranted.
***
Even if the District Court had denied the applicants’ motion, there would be no ground for reversal because the applicants failed to satisfy the requirements for emergency injunctive relief, one of which is a showing of likelihood of success on the merits. Nken v. Holder, 556 U. S. 418, 434 (2009). And here, in order to obtain what the application sought (and what the Court now provides)—i.e., relief for the members of the class that applicants asked to have certified—applicants had to show that they were likely to establish that class relief is available in a habeas proceeding and, if such relief is available, that the standard requirements for class certification could likely be met.
In my judgment, applicants were not likely to prevail on either of those issues.
***
Instead of merely ruling on the application that is before us—which asks for emergency relief pending appeal—the Court takes the unusual step of granting certiorari before judgment, summarily vacating the judgment below dismissing the applicants’ appeal, and remanding the case to the Court of Appeals with directions regarding the issues that court should address. From the Court’s order, it is not entirely clear whether the Court has silently decided issues that go beyond the question of interim relief. (I certainly hope that it has not.) But if it has done so, today’s order is doubly extraordinary. Granting certiorari before a court of appeals has entered a judgment is a sharp departure from usual practice, but here neither the Court of Appeals nor the District Court has decided any merits questions.
We have said more times than I care to remember that “we are a court of review, not first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). Even on the Court’s reading of what happened below, all that the District Court and the Court of Appeals decided was that the applicants were not entitled to temporary injunctive relief. If the Court has gone beyond that question, it has blazed a new trail. It has plucked a case from a district court and decided important issues in the first instance. To my eyes, that looks far too much like an expansion of our original jurisdiction.
I must therefore respectfully dissent.
So it continues. Millions flow in illegally, but only a relative trickle can flow out. This is an untenable situation.
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Comments
Tell the court to go fuck themselves. We’ve arrived at that point again.
“This is an untenable situation”
This is an understatement, professor.
Can’t wait for Outhouse to hug some Democrat nuts on this one!
Yup. SCOTUS is suffering from s severe case of HUA. Head Up A..
I’d say TGS, their opinions will change once Trump leaves office
Make that TDS
Give them 30 days in GITMO and then deport them. That should give them enough time to call a lawyer.
Well, every single one of Trump’s appointees voted for this. So are you also saying that Trump should go fuck himself?
We need the GOPe to pass legislation. Unfortunately if Trump tells the Court to GFY, the GOPe will join Democrats in impeachment. It won’t result in a conviction, but it will be back to Trump’s first term.
” …and told the 5th Circuit to figure out what type of due process the TdA members should get.”
Put TdA in front of patriots with loaded AR-15’s …. THERE”S YOUR DUE PROCESS! How did Eisenhower and General Jumpin’ Joe Swing pull this off in OPERATION WETBACK in the 1950’s? Granted, back then we had Earl Warren [not arrogant and king-of-the-assholes Roberts] and dems weren’t trying to destroy the country.
I agree. Courts go fuck yourselves. Enforce your edicts if you can.
The administrative state is in full control. The courts will do what’s good for the courts. Most of the illegal aliens that came in under Biden are more likely to die of old age before being deported. DACA anyone?
We are ruled by Political Commissar Judges.
The founding fathers gave us a 2nd Amendment for a reason.
This is sadly true, comrade.
“Conservative” Supreme Court.
Two out of nine Justices ruling reliably and consistently in defense of individual liberty and evincing fidelity to the Constitution (Thomas and Alito) is a pretty paltry number and reflects a sad situation.
Yes, and those 2 were appointed by the Bushes. Not by Trump.
You’re obsessed with anti-Trump animus. Like a broken record, or, a toddler.
You’ve made this point ad nauseam. No one gives a damn who placed these two Justices on the bench.
If I’m being generous, I’ll call it partial atonement for Bush II’s utterly disastrous and idiotic decision to depose Saddam Hussein and unleash chaos in the middle east, while empowering the Iranian regime and myriad Islamofascist/terrorist groups.
I care who appointed those justices. Trump had a chance with 3 appointments to have a true legacy of conservatism for himself and the country. However, together with the Sessions, Rosenstein and Wray appointments, he has caused himself a world of hurt in his first term and now his second term. This is on him and as citizens we are paying the price – fiscally, criminally, in our schools, healthcare systems, everywhere – for millions of illegals not being quickly deported, as I recall happened under Eisenhower and Obama.
And, Thomas’s appointment is merely compensation for Bush I appointing the execrable David Souter. Funny how you omit mention of that inconvenient fact.
And the Bushes would swear they picked the wrong justices. They didn’t want originalists. They wanted squishes like themselves.
This SCOTUS (and the rest of our treasonous judiciary) would have decided in favor of British troops in the War of 1812 and ordered Washington DC returned to the British illegal immigrants who were repelled and deported without due process. Further, the SCOTUS found that any American who shot at a British
soldierillegal immigrant without a warrant or judicial approval needs to be tried for attempted murder.The only due process that any illegal alien is due is the establishment of his status as an alien who is here without permission. That’s it. There is nothing else that needs to be established in order to deport that person.
Foreigners are in America only as guests. They have no right to be here and if they are here without our permission then they can be deported immediately.
This ain’t rocket surgery.
Vile Dhimmi-crat “judges” contrive an endless array of alleged “rights” that inure to the benefit of illegal aliens.
There is “due process” for entering this country. These illegals ignored it – they don’t care about due process as evidenced by their own actions. We need to deport the USSC.
It occurs to me that we would better served by moving the Supreme Court to Kansas or thereabouts. I think it bad to have all the organs of government in one place going to the same cocktail parties. having the same friends, and dealing with the same press. In fact we should distribute all centers of government function to different states. Keep congress, white house, and pentagon in DC and move everything else out.
8 of 9 judges are either Harvard or Yale, maybe that is the issue that needs to be addressed. I guess DEI doesn’t apply to selecting what schools those judges are schooled, Where is the diversity in school selection?
I’m leaning on scattering the Supremes throughout the Country, perhaps each to administer a judicial district.
They can gather through Zoom just like the rest of the country did during the quarantine years.
I like that idea! Kudos!
There were a lot of anonymous, untracked, untraced people involved in the massive illegal immigration into this country, including all the sex trafficked kids.
I’m sure a few anonymous, untracked, untraced people could get involved in a massive illegal emigration, and ship TdA members to other countries.
Boy, isn’t it too bad we can’t quite figure out who does these dastardly acts, returning illegals illegally.
This is true! These diseased criminals with dollar signs in their eyes came ILLEGALLY, so they can be returned ILLEGALLY! We have a chief justice who is so boiling over with rage towards our President that he can’t see straight. OR is it that Trump has somehow turned off his money spigot?
They didn’t want due process to come here, so clearly they don’t need it on the way out.
“The deep damage from the Biden administration’s treasonous open borders policy…”
Good on you, Professor, tell it like it is!
Biden Syndicate and deep state treason goes far beyond illegals.
Meh. Build a series of much larger detention facilities and fill them the hell up. These cats can sit inside a cell until they get a hearing on their individual circumstances from whatever Federal District CT their particular facility is within. If they have minor children… that sucks for them, if they choose to voluntarily deport then they can remain unified back wherever but if they decline then call CPS and the children go to foster care if no US Citizen Parent. Speaking of which Congress should create new statute that a green card holder or anyone on a deferred or protected status who resides with an illegal alien automatically loses their permission to remain in the USA.
Separately time for Congress to man up and and start imposing their will upon the Inferior Courts they created. Start with clarifying that a District Judge may on rule on on the plaintiffs before him and his decision is limited to his Federal District just as a Circuit level ruling is limited to that one judicial circuit. Impose mandatory video/audio live stream in every inferior CT. Next create an auditable system of randomized assignment for which particular Judge hears a case. Then create a ‘last 3 out’ review so that the 3 Judges in each Circuit most often reversed by higher courts each year are reviewed by Congress for continuation as an active Judge. Won’t be ‘fired’ but will be moved to inactive status basically same as retired in that they still draw paycheck but no ability to hear cases again.
If the Judiciary still doesn’t get the message pull the US Marshals out to go perform interior immigration enforcement or run the new illegal alien detention facilities. If they still don’t understand the message then Congress can dissolve the Inferior Courts altogether…only the Supreme Court is required by the Constitution. Congress can then at some point recreate the Inferior Courts but with better geographical boundaries that more closely adhere to population rather than State lines as the primary focus. Perhaps add 4 new members to SCOTUS to bring the total to lucky 13 and have 12 Circuits with the Chief Justice overseeing the DC Circuit. Of course then Trump would be appointing every inferior Court judge plus 4 new Justices to SCOTUS.
I have just the places: New York City and Los Angeles. Just seal them both up. 🤪 Not a bad idea though.
The first attribute of national sovereignty is recognized national borders, that can only be crossed with the permission of the government, and within which the national law and not foreign law is supreme.
As it stands, we are being invaded by a hostile, foreign army and there are neither legal nor military means of enforcing our sovereignty.
Your Humble Servant is of Chinese ancestry [though born here]. There were about 2 dozen dynasties that ruled in China before the imperial era was over. When each of the dynasties fell, they colloquially referred to it as “interesting times”.
Subotai Bahadur
Looks to me like whoever wrote this is afraid to attach their name to it, why? Only see a concurrence from Kavanaugh and Alito’s decent.
Do they live in fear of the cartels?
As Roberts was quoted as saying after his refusal to hear the 2020 election, he was afraid of riots,…plus Kavanaugh almost had an unwanted guest ith Dobbs,
Freaking traitors, to hell with them. Let the libtards kill them
So let’s be clear.
The Supreme Court decided that nobody had any ‘standing’ when Biden was flagrantly violating immigration law to bring 20 million here illegally, despite explicit and provable violations of multiple clear laws, saying that Biden had the absolute right to conduct border policy EVEN WHEN IGNORING THE LAWS.
And yet now they magically discovered ‘standing’ that prevents Trump from sending them home.
Roberts is a leftist joke that intends to hamstring Trump with as much red tape as possible to make it impossible to get rid of the illegals, until another Democrat gets to let in another 20 million when they’ll magically say ‘no standing’ to stop them.
Are you for real???! Surely even you can see that what you wrote makes no sense at all.
There’s nothing “magical” about it. The people about to be deported obviously have standing to challenge their deportation! How could they not? You can’t possibly imagine that they don’t.
Whereas who had standing to challenge their being allowed in? No individual was specifically harmed by it. The most anyone could claim was that they were harmed as members of the general public, and that by definition is not standing. To have case or controversy you have to be harmed more than merely as a member of the public.
They have no standing anymore so than a trespasser has standing to refuse to leave
Someone who is here illegally has no standing to challenge any deportation. There is nothing to challenge. He is here illegally and will be expelled. He has no right to try to argue about anything. He has no right to be here. Period.
Well yes they do. That challenge is limited (afaik) to showing why they should not be deported. It might be a case of mistaken identity. It might be a legitimate claim of asylum. It might be they have proof of temporary legal status that has not expired. Governments do make mistakes. What should not happen is when those who are clearly in the country illegally can’t counter the government’s legit order being allowed to stay while their lawyers keep trying to stymie the process.
If you believe that illegal aliens have standing to challenge their deportation, explain the illegals caught redhanded by the Border Patrol, processed, and then sent back across the border within hours. That was the process for many years until Biden took over.
Their due process is nowhere near the due process required in felony or even misdemeanor cases for example. They broke the law crossing the border illegally. The only element that needs to be proven for deportation is that they are in the country illegally.
The section on “Expedite Removal” is germane. For the vast majority, this process circumvents immigration court.
https://legalclarity.org/what-happens-if-immigration-catches-you-crossing-the-border/
Could it be because there is no order of deportation? Seeing how the people sent back were refused entry in the first place.
OK. Y’all want to clog up the Federal Courts for this…no worries, fine with me. Let each individual make their claim but no whining about confinement in the meantime nor the removal of their Children to CPS and foster care system nor the removal of one illegal Alien Parent out of sequence with the other, nor about the pretrial confinement of every other Federal defendant while y’all clog up the Federal Courts.
Shame about the US Marshals being removed from current duties to run the confinement facilities and the mandatory ADDITIONAL workload quota that Congress will have to impose on Federal.District Judges of hearing 30 of these claims per week on top of their current docket and mandatory 6 day work weeks 50 weeks per year for the next 20 years. The Judges can either comply and demonstrate ‘good behavior’ or be removed if they don’t meet their quota of cases. They can also resign. Of course that means Trump gets to nominate their replacements. Do it just like nomination and confirmation of SR Military Officers; on a single list.
You have been demanding “due process” for Pancho Villa. Invaders have no rights.
Treat them as the invaders they are, with deadly force.
Why is it the two other co-equal branches never brace the
” Supreme Court “???
Rule of judges. So many lawmakers and senior members of the executive are lawyers and think a judicial tyranny is just fine.
Give them the 24 hours notice the Supreme Court is demanding they get and then drive them.
When laws are not enforced it is our duty to enforce them in the pursuit of life, liberty and peace.
Eisenhower did it so could Trump.
Trump by the way did a fantastic job at deportation during his first administration without twisting the AEA to absurdity.
There is a standard practice for deportation and it is not an especially limiting one.
The problem isn’t the deportation part but the lefts instance that each one of the potential 20+ million illegal aliens actively allowed in to America during the Biden reign of error be given their day in court.
Again Eisenhower did it.
Let that sink in
Eisenhower at no point used the AEA to do it, and did exactly as you described.
If Eisenhower could do it without the AEA so could anyone.
Did Eisenhower have courts stuffed full of traitors who hate the country and its people? Whose families make millions off the illegals? Who hate the president?
Deportation is different than incarceration (in a notorious foreign megaprison), and spiriting people away in the middle of the night has consequences.
Trump needs to assert authority under the 1996 immigration act and extend it to anyone here the last 4 years or who has not registered (a requirement that is not enforced).
The fact is, you dont need a reason to deport illegal immigrants (there is no right to be here) and th only “due process” is notice and an ID check. At the same time, sending them to a notorious megaprison is not necessarily the way to go.
Trump dd not send them to prison Trump sent them to the custody of their home country that then put them in prison… big difference .
There aren’t millions of suspected TdA or MS-13 members. And the AEA is not even arguably applicable to anyone else.
So there’s no reason those few thousand who are suspected of being members can’t be given hearings focused specifically on one question and one question only: Is this person a member of one of those two organizations, or is he not. As soon as it’s determined that he is, the hearing is over and he can be deported.
Just as the Supreme Court held 20 years ago that although it is undisputed that POWs are not entitled to habeas corpus, alleged POWs who dispute their status, are entitled to a hearing limited to that question alone. If they are found to be genuine POWs, that is the end of the inquiry and they have no further recourse. Same here; if the government says someone is an Alien Enemy subject to deportation, and the person disputes that, he’s entitled to a hearing limited to that question.
Probably a good thing we didn’t have 20,000,000 “alleged” POWs to vet, then.
Alien invaders, on the other hand…
We don’t have anywhere near 20,000,000 alleged TdA and MS-13 members. Those are the only people whom the administration alleges are Alien Enemies, subject to summary deportation. (The administration’s claim must also be tested in court, but I’m assuming for now that it will be upheld.) There aren’t more than a few thousand of them.
No illegals have a right to stay in the country and many have already received excessive due process. We don’t have to give them repeated chances to find an idiot judge willing to betray the country.
Send the invaders home.
Thank you.
I agree with you. However, it seems the Supreme Court did not limit the determination of status to one question. I am perhaps wrongly thinking that would be part of the due process. In my very humble opinion as long as what constitutes due process for alleged gang members subject to AeA is left to the lower court they very well could allow lawyers and defendants argue they are owed due process comparable to those in criminal prosecutions.
The unwritten rule is that a Dhimmi-crat president can do whatever the hell he wants, via Executive Order, but, a GOP president cannot undo a Dhimmi-crat predecessor’s EO’s, nor promulgate new EO’s of his own.
DACA is the most glaring example of this axiom. Despite this lawless scheme having been implemented by narcissist-incompetent-dunce, Obama, without a scintilla of constitutional authority, SCOTUS scuttled #45’s attempt to undo DACA on the most flimsy, contrived and illogical pretext, imaginable.
Bah, fatfingered the downvote. +1/-1 to correct it.
No worries.
There is no such rule.
DACA was entirely due to Trump trying to being too clever by half. Had he simply declared that there’s a new sheriff in town, and DACA is no longer the administration’s policy, he could have done it and there could be no objection. But Trump refused to say that he disagreed with DACA. He pretended that he liked DACA but was unfortunately compelled to end it because he’d received advice that it was illegal. It’s not his fault, that’s just unfortunately the law. The courts were not impressed, and said no, if that’s your only reason for ending it then we’re telling you you got bad advice, and therefore your decision is arbitrary and capricious. Make up your mind, do you want DACA or do you not. And Trump decided that on the whole he’d rather keep it while complaining to his base about the courts and trying to make it their fault.
The problem I had with that was that it seemed to me that the courts were giving an advisory opinion, and they can’t do that.
Sniffed a lot of glue in your day, eh?
So it continues. Millions flow in illegally, No, they don’t. Trump has successfully stopped that. The inflow is down to a relative trickle. The patient is no longer haemorrhaging blood, has been stabilized, and is now ready for surgery. Congratulations Dr Trump, and thank you very much. Now we proceed according to the constitution and the law.
Todays issues aren’t with dealing with the trickle now coming in. Todays problem is dealing with the potentially 20+ million illegals purposely allowed in to America under the Biden regime.
Surely even someone as limited in intelligence as yourself, Justice Mulhouse, can understand that point?
The American justice system was never set up to deal with such a situation AND the MEN that wrote the constitution never had a situation like this to consider.
Milhouse is too committed to the rule of judges to admit the courts are in the wrong.
The patient’s body has been invaded by millions of parasites. The inflow of new parasites has been reduced, but the remaining parasites need to be purged from his body in order for the patient to fully recover.
Just list them as white and I’m sure we could deport them tomorrow.
White, or, “Zionist.”
What do we do. Is to rid ourselves of these murdering aliens
the left is ignoring laws they dont like and rigging elections
this whole being upset over what the courts are doing is going to be a mute point
ITS ONLY A BIG ISSUE ( court verdicts) WITH TRUMP IN CHARGE cause as we see over and over ..only maga is held to americana standards and even trying to live by those standards while once again,,the left doesnt do so when in charge…the do what they want and the msm says what the dnc tells them too
the scotus is afraid to give the look of approval of the abilty to escape due process…even if they know that these pos should be deported now
keep these criminals in prison under the hardest conditions possible ( 10 or so of their bros just escaped from new orleans prison) and let the courts f around
stop allowing the msm to control the maga agenda on the local levels
Alito and Thomas are the only real judges at SCOTUS.
Roberts, Kavanaugh, ACB, are easily flipped, pander to the crowds and show political bias.
So the court thinks it has,a Constitutional role in defending against an invasion?
They’ve admitted in open court that they support enemies of the United States. Remove the justices who voted for this, replace them with sane people, and put the treasonous justices on trial.
To be clear, the AEA was written to give the Executive authority to ‘fast track’ deportations of unusually high-risk illegal aliens. The Supreme Court just ruled that this fast track really means a slower and more court-centered individualistic approach in direct contradiction to the written text of the AEA, meaning it could take a million court appearances to pry loose these violent thugs and send them packing.
Gee, thanks SC.