Portside

On Friday afternoon, the Supreme Court issued an emphatic and unusual decision declaring that the Trump administration violated the due process rights of Venezuelan migrants in its attempt to deport them to a Salvadoran prison. The government’s late-night race to expel these individuals, the court held, “surely does not pass muster” under the Constitution, failing to provide them with fair notice and an opportunity to contest their removal. The court also extended an injunction to stop the government from deporting an entire class of migrants under the Alien Enemies Act of 1798 while the case works its way through the lower courts. Only Justice Samuel Alito, joined by Justice Clarence Thomas, noted dissent.

In all, the ruling marks an astonishing defeat for the Trump administration. The court did not decide whether the president can, in fact, wield the Alien Enemies Act to banish migrants to a foreign prison. But it imposed vital constitutional safeguards on his efforts to do so, protecting more innocent people from unlawful expulsion and imprisonment overseas. And the court did all this on an exceptionally expedited basis, with minimal briefing and no argument. For the majority, it was not a close call: The government’s attempt to disappear migrants to a foreign black site is egregiously unconstitutional.

Friday’s ruling is a follow-up to the Supreme Court’s intervention, last month, in the Trump administration’s ongoing scheme to summarily deport migrants to CECOT, a brutal El Salvador prison. In March, the president invoked the Alien Enemies Act—an 18^th-century wartime law that applies to invading armies—to justify rushing these individuals out of the country outside of usual immigration procedures. He accused them, without evidence, of belonging to a Venezuelan gang, which he deemed to be a “foreign terrorist organization.” The government first expelled more than 200 men to CECOT in March, in apparent violation of a district court order. Credible evidence showed that it was preparing to do the same on April 18 in the Northern District of Texas. When lower courts refused to step in, the migrants’ lawyers asked the Supreme Court for emergency aid. It obliged, issuing a one-paragraph order just before 1 a.m. halting the deportations.

In its new, unsigned decision—which was released without warning—the court explained and expanded its dramatic order last month. Immigrants, it noted, are entitled “to due process of law in the context of removal proceedings,” a fact that the court unanimously affirmed in a related case six weeks ago. So, under the Fifth Amendment, “no person shall be removed from the United States without opportunity, at some time, to be heard.” Here, the majority held, at a minimum, that migrants “must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.” It noted pointedly that, in the case of Kilmar Abrego Garcia, the government has claimed that it has no authority to retrieve migrants who’ve been sent to CECOT, and that federal courts have no jurisdiction to order their return. Migrants’ interests in a robust due process, the majority wrote, “are accordingly particularly weighty.”

But the government barely provided any due process at all. Instead, it gave migrants notice “roughly 24 hours” before they were scheduled to be expelled to CECOT. These “notices” were entirely “devoid of information about how to exercise due process rights to contest that removal.” Such a barebones, eleventh-hour warning “surely does not pass muster,” the court concluded. It therefore decided, as a matter of law, that the Trump administration had run afoul of migrants’ due process rights. And it instructed the lower courts to determine exactly what kind of process would satisfy the Constitution. In the meantime, the court maintained its freeze on further deportations under the Alien Enemies Act, prohibiting the government from attempting more summary deportations from Texas to El Salvador under cover of darkness.

This holding, alone, is remarkable. The Supreme Court pointedly did not wait for the U.S. Court of Appeals for the 5^th Circuit to opine on the due process question. Instead, it leapt over the 5^th Circuit and decreed that the Trump administration ran afoul of the Constitution, only leaving the lower court to decide the contours of what process is due. (And the 5^th Circuit’s eventual decision on the matter will stay frozen until SCOTUS intervenes again.) This procedure is rarely deployed and is reserved for extraordinary cases in which a lower court has failed to act swiftly and responsibly. Indeed, the majority opinion bristles with irritation that the (conservative-leaning) lower courts did not swiftly address the planned deportations in this case, dragging their feet for so long that SCOTUS had to step in. The majority sounds irritated not just that the government failed to heed its earlier admonition that migrants must get due process, but also that the lower courts did not expeditiously enforce that protection here.

It is also notable that the court’s injunction protects all migrants who, as a class, are being detained in the North District of Texas and face deportation under the Alien Enemies Act. (The government was reportedly gathering these individuals in Texas in preparation for their expulsion.) Just six weeks ago, the court lifted a classwide restraining order (by a 5–4 vote) that had stopped these deportations. It held that the migrants had to challenge their expulsions to CECOT in habeas proceedings, which are typically pursued individually, not classwide. Now, however, the court has granted classwide relief, at least for now, to ensure that the government can’t pick off non-plaintiffs and quietly fly them to El Salvador. Its decision applies directly to migrants held in one part of Texas. But the logic of its due process holding applies to migrants around the country—that is, if the government chooses to obey it.

The majority’s discussion of this issue evinces deep skepticism toward the executive branch’s credibility, questioning whether it could be trusted to respect the rights of any migrants if they are not all protected as a class. The Justice Department, it noted, had promised not to deport the handful of named plaintiffs leading this case while it is pending. But it did not promise to refrain from deporting anyone else. “We reject the proposition,” the majority wrote caustically, “that a class-action defendant may defeat class treatment, if it is otherwise proper, by promising as a matter of grace to treat named plaintiffs differently.”

Still, the court did not definitively decide whether the ultimate question here—whether the Alien Enemies Act may be wielded against migrants—may be resolved through class litigation. Nor did it rule on that pressing question, though Justice Brett Kavanaugh wrote separately to say that it should do so as soon as possible, and that he would have scheduled such proceedings immediately. The threat of deportation under the Alien Enemies Act therefore continues to loom over all noncitizens whom the administration seeks to persecute. (Almost every lower court to consider this question has held that the 1798 law does not authorize fast-track removals of immigrants.) Friday’s decision nonetheless suggests that a majority of the justices are skeptical of this effort, eager as they are to institute durable safeguards that significantly impede and undermine the entire scheme.

Alito’s dissent, joined by Thomas, focuses on procedural and factual disagreements. The justice continued to insist that the court lacks jurisdiction to protect the migrants at this juncture, rehashing technical arguments that are simply false. And he once again underplayed the real danger that migrants faced of imminent danger on April 18 had SCOTUS not acted. In that sense, Alito’s opinion further highlights a divide between the majority and the dissent on how much trust should be afforded to the Trump administration. Alito and Thomas believe it deserves immense deference to the point of blind trust. Just yesterday, these two justices suggested that district courts should not be allowed to issue nationwide injunctions to stop imminent, unconstitutional harms; today they seek to crack down on the classwide relief to protect plaintiffs’ rights. It is increasingly unclear whether Thomas and Alito would offer any restraint whatsoever on Trump exercising absolute power. The rest of the court, by contrast, is seemingly running out of patience for its tricks, misrepresentations, and defiance of basic constitutional principles.

The Supreme Court is going to hand Trump many victories over the course of his second term. But this issue has clearly divided the conservative supermajority and disturbed several justices who are generally inclined to rule for this president. It’s easy to see why. What the government attempted to pass off here was an alarming and foundational affront to the Constitution. If the court did not draw a line here, it is hard to imagine where it ever would.

Mark Joseph Stern is a Slate senior writer.

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