
SCOTUS Approves (for Now) Alien Enemies Act Deportation Gambit
However, the Court is in lockstep about observing due process from here on out.
President Donald Trump posted on Truth Social his happiness that the U.S. Supreme Court upheld his use of the Alien Enemies Act (AEA) for deportations. He wrote: “The Supreme Court has upheld the Rule of Law in our Nation by allowing a President, whoever that may be, to be able to secure our Borders, and protect our families and our Country, itself. A GREAT DAY FOR JUSTICE IN AMERICA!”
While on the surface, this looks like cause for celebration, greater legal minds have come forward and dissected the justices’ actual stance. Here is really where the AEA stands.
All nine justices agree that President Trump and the executive branch must follow due process laws and provide detainees with judicial review. Due process is part of the Constitution. In the case of the illegals whom Trump had deported to El Salvador, that was nonexistent. SCOTUS effectively said that was wrong.
However, here is where the dissent occurred. The majority of justices — John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — believe that the illegals disputing their deportation do so under habeas corpus. As Kavanaugh noted, “Importantly, as the Court stresses, the Court’s disagreement with the dissenters is not over whether the detainees receive judicial review of their transfers — all nine Members of the Court agree that judicial review is available. The only question is where that judicial review should occur.” (Emphasis added.)
This is a critical point because these illegals were being held in Texas. A judicial review that occurs in Texas is more likely to have conservative judges presiding or at least a judge who is sympathetic to deportation. In Washington, DC, the judges are mostly Democrat appointees and, therefore, more likely to stymie the deportation efforts.
The dissenters — Sonja Sotomayor, Elena Kagan, Ketanji Brown Jackson, and in part, Amy Coney Barrett — argued that the lawsuit was filed correctly in DC according to the Administrative Procedure Act, which grants oversight into federal agencies’ actions.
This 5-4 decision is a win for President Trump. However, if due process isn’t observed and reasonable notice isn’t given to those about to be deported, SCOTUS will probably weigh in yet again — and probably not in Trump’s favor.
Conservatives are also disappointed to see Justice Barrett’s name on the line of dissent. Most don’t seem to understand (or care) that it’s a technical disagreement. Looking at it from a broader scope, the justices all agree that Trump and his team acted outside of the Constitution in the deportation actions by not following due process.
Yet all some see is that Barrett sided with the left-wing justices again. Here is where our Nate Jackson’s sage advice deserves a spotlight: “Barrett occasionally irks conservatives because of what [Charles C.W.] Cooke calls her ‘procedural preferences,’ which she follows ‘rigorously.’ In other words, she interprets the law and sometimes reaches a conclusion that doesn’t advance Trump’s every decision. Criticize away, but do so on the merits, not based on the catch-all DEI excuse or because of some perceived sideways glance or due to the PTSD from O'Connor, Kennedy, and Souter.”
Where the justices disagree is a technicality, and National Review’s Andrew McCarthy believes that in this case, the leftists and Barrett actually have the better legal argument.
At the end of the day, SCOTUS didn’t agree that Trump’s use of the AEA was correct; in fact, the justices didn’t address that at all. The majority ruled that the judicial review should have occurred in Texas, not Washington, DC. This does, however, take some of the wind out of rogue District Judge James Boasberg’s sails. This has ended his temporary restraining order on deportations for the time being.
Here is the question that seems a bit more pressing: What authority does a lower-court federal judge have over the actions of the president of the United States? Seems like the answer to that would help prioritize the rest of these more niggling legal details.