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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