SCOTUS allows Trump to send Venezuelans to a Salvadoran mega-prison

In a Monday evening ruling, the Supreme Court allowed the Trump administration to resume the removals of Venezuelan migrants accused of being members of the Tren de Aragua gang under the unprecedented use of the wartime Alien Enemies Act. The decision, lifting a district court’s temporary restraining order halting the removals, was 5-4, with Justice Amy Coney Barrett joining the Democratic appointees in dissent.

The ruling is a significant win for the Trump administration. Still, it did set limits on President Donald Trump’s plans for mass, summary deportations—each detainee must be afforded a chance to challenge their removal under the Act in court.

The justices did not address the underlying question in the case: whether Trump can use the Alien Enemies Act, a law intended to be invoked during times of war, to claim a non-state actor like Tren de Aragua is perpetrating an “invasion” of the United States. Instead, the decision focused on a procedural question of how and where the plaintiffs should have brought their case. The majority ruled that “legal challenges to an individual’s removal under the Alien Enemies Act must be brought in habeas petitions in the district where they are detained.”

But this is no mere technicality: How and where the question is asked in court will have massive implications—and not just for Venezuelan nationals who must defend themselves from inside detention, possibly without lawyers. While the justices required meaningful opportunities to challenge removal in court through a habeas corpus petition, there is no certainty that the government will provide that opportunity, nor that there will be any way to remedy the situation if anyone (including a US citizen) is whisked away without first getting their day in court. As Georgetown Law’s Stephen Vladeck wrote, in forcing plaintiffs to fight their removal through individual habeas petitions, “the Court is effectively bringing a pea-shooter to a gunfight.”

Still, “to the extent the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief,” Justice Sonia Sotomayor warned in her dissent, “it does so in direct contravention of an edict by the United States Supreme Court.”

The majority’s decision raises the likelihood that individuals will be deprived of their rights and removed. The decision brought to a halt class-wide relief under the Administrative Procedure Act, without any deliberation about whether that was an appropriate decision, and requires detainees to challenge their removal in the jurisdiction where they are detained. That discussion will likely be in the most conservative courts in the country—because the administration can transfer anyone to the Southern District of Texas before informing them of their impending removal.

The court green-lit Trump’s use of the Alien Enemies Act despite implicitly acknowledging that it may as well have been illegally applied up to this point to the Venezuelans sent to El Salvador without due process. Moreover, it did so without considering that the administration had sought to dodge judicial compliance in its zeal to deport hundreds of Venezuelans in what had all the traits of a public relations gimmick. This willingness to give the Trump administration the benefit of the doubt despite the history of this case is a sign that a majority of the justices either agree with Trump’s actions or are willfully blind to the danger they pose to the rule of law. “The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison,” Justice Ketanji Brown Jackson wrote in her dissent. “For lovers of liberty, this should be quite concerning.” For the majority, however, concern seemed lacking.

The decision prompted strong dissents from both Sotomayor and Jackson, who warned of irreparable harm to those wrongfully removed, while chiding the court for using its so-called “shadow docket” to make consequential decisions outside the regular judicial process—no lower court decisions, no full briefing, no oral arguments, no reasoned opinion. Just an edict a few paragraphs long with enormous consequences.

Sotomayor scolded the Trump administration for whooshing off hundreds of Venezuelans to El Salvador “in a shroud of secrecy” on March 15, as well as for taking the position that there’s nothing they can do to bring the men back from a notorious Salvadoran prison. She raised the question of what happens if someone is sent to the Terrorism Confinement Center, or CECOT, by mistake, or if the courts later decide that the president didn’t have the authority to use the Alien Enemies Act in this way. Indeed, the Supreme Court allowed removals under a regime more prone to error without first deciding what happens to someone who is unlawfully removed.

“The Government’s resistance to facilitating the return of individuals erroneously removed to CECOT,” Sotomayor wrote, “only amplifies the specter that, even if this Court someday declares the President’s Proclamation unlawful, scores of individual lives may be irretrievably lost.” Sotomayor continued: “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.”

In a sign of how seriously wrong Jackson believes this decision to be, she compared it to Korematsu, the disgraced ruling upholding the confinement of Japanese Americans during World War II. “Make no mistake,” she wrote, “we are just as wrong now as we have been in the past, with similarly devastating consequences.”