The media is suggesting that yesterday's Supreme Court decision on deportations under the Alien Enemies Act was a huge win for the Trump Administration. It was not. In truth, the judges unanimously found that every alien the administration desires to deport under AEA must be given notice and opportunity to challenge the deportation order in court. No more last minute round ups and dark of the night flights to defeat any opportunity for judicial review of whether a person is even in the TdA.
In the words of the per curiam (not ascribed to a specific author) decision of the court, "detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal." Further, "the notice must be afforded 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."
Again, from the decision of the court, "the only question is which court will resolve that challenge." The court held the challenge must be brought in jurisdiction where the challenger is being held. The court treated this as a narrow question of jurisdiction, not substance.
The fate of those 250 (or so) already sent to El Salvador was not before the court, and the majority decision did not attempt to resolve it. Rather, the only question before the court was the temporary restraining order from the District of Columbia District Columbia barring sending anymore alleged members of TdA to El Salvador. The Supreme Court lifted that TRO but ordered that any further removals must afford every person subject to it due process.
This was acknowledged by Justice Sotomayor in her blistering dissent:
"To the extent the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court.”
Sotomayor also addressed those already removed, making clear the court found the Trump Regime acted in defiance of the Constitution:
"The Court’s ruling today means that those deportations violated the Due Process Clause’s most fundamental protections."
Sotomayor also made some strong statements describing the Trump Administration as a "lawless regime," that the court's unsigned majority opinion focusing on jurisdiction did not disagree with:
"What if the Government later determines that it sent one of these detainees to CECOT in error? Or a court eventually decides that the President lacked authority under the Alien Enemies Act to declare that Tren de Aragua is perpetrating or attempting an “invasion” against the territory of the United States? The Government takes the position that, even when it makes a mistake, it cannot retrieve individuals from the Salvadoran prisons to which it has sent them [cite to the Garcia case] The implication of the Government’s position 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 . . . The Government’s conduct in this litigation poses an extraordinary threat to the rule of law . . . We, as a Nation and a court of law, should be better than this."
