Controversy over President Donald Trump’s mass deportation agenda is still ongoing, this time boiling over at the level of the U.S. Supreme Court. Early Saturday — at 1:00 a.m. EST, in fact — the Supreme Court issued an order temporarily halting the president’s deportation of Venezuelan nationals affiliated with the Tren de Aragua (TdA) foreign terrorist organization under the Alien Enemies Act (AEA) of 1798. The unsigned order stated that the Trump administration “is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.”

The case in question involves several Venezuelan nationals, identified by law enforcement as TdA members or affiliates, who previously filed an Administrative Procedure Act (APA) complaint in the U.S. District Court for the District of Columbia, asking that their imminent deportations be halted. Judge James Boasberg quickly issued an ex parte temporary restraining order (TRO) barring the Trump administration from carrying out deportations under the AEA. However, the Supreme Court vacated that TRO earlier this month, agreeing with the Trump administration that the proper venue for the detained Venezuelans’ complaint was a habeas corpus court in the district where they were detained, in Texas, not an APA complaint lodged in Washington, D.C.

Attorneys for the Venezuelans subsequently filed a class action lawsuit in the U.S. District Court for the Northern District of Texas on Wednesday, seeking writs of habeas corpus for all Venezuelans detained and slated for deportations under the AEA. Trump administration representatives assured the court that the TRO being sought on behalf of the Venezuelans was unnecessary as no deportation flights were scheduled imminently and all detainees would be given at least 24 hours’ notice prior to deportation, during which time habeas petitions could be filed. Judge James Wesley Hendrix, who was appointed by Trump during his first term, did not issue a TRO, nor did the U.S. Court of Appeals for the Fifth Circuit, prompting the Venezuelans’ lawyers to seek an emergency injunction from the Supreme Court.

The Supreme Court’s order was issued quickly, without providing the Trump administration a chance to respond or even allowing dissenting Justices Samuel Alito and Clarence Thomas time to draft a dissenting statement, although the Supreme Court did say that it would welcome a response from the administration and Alito did publish a scathing dissent on Sunday. In that dissent, Alito began by arguing that the Supreme Court likely lacked jurisdiction: the Supreme Court only had jurisdiction, he said, if the appellate court did, and the appellate court only had jurisdiction if the district court denied injunctive relief; however, both lower courts only failed to issue a TRO, not a preliminary injunction, and did not outright deny issuing a TRO. “The denial of a true TRO is not appealable, and here, it is not clear that the applicants’ TRO request was actually denied,” Alito wrote, concluding that the Supreme Court therefore lacked jurisdiction to issue its order.

“When this Court rushed to enter its order, the Court of Appeals was considering the issue of emergency relief, and we were informed that a decision would be forthcoming. This Court, however, refused to wait,” Alito continued, noting that the Supreme Court’s own rules prohibit the judicial authority from issuing injunctive relief unless the petition for relief has made its way properly through the lower courts. Alito also observed, “The only papers before this Court were those submitted by the applicants. The Court had not ordered or received a response by the Government regarding either the applicants’ factual allegations or any of the legal issues presented by the application.” He added, “And the Court did not have the benefit of a Government response filed in any of the lower courts either.”

Alito further pointed out that the Supreme Court had issued a class-wide order, even though “the District Court never certified a class, and this Court has never held that class relief may be sought in a habeas proceeding.” The justice wrote that “literally in the middle of the night,” the Supreme Court “issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order.”

He continued, “I refused to join the Court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate.” Alito concluded by stating that both the executive and judicial branches of government “have an obligation to follow the law.” He stated that the Trump administration must abide by the Supreme Court’s previous order regarding deportations under the AEA and the Supreme Court “should follow established procedures.”

U.S. Solicitor General Dean John Sauer also wrote a response to the Supreme Court’s order, which he filed on Monday. He argued that the Supreme Court should not have issued its order, noting that it is “a court of review, not first view.” Sauer continued, “Yet the application insists on judicial review in reverse. It calls for this Court to be the first to resolve due-process challenges to the adequacy of notice that designated enemy aliens receive, on behalf of a putative class that no court below has certified, on a nonexistent record.”

Referring to how quickly the Venezuelans’ lawyers moved through the court system, rapidly appealing the mere failure to issue TROs within a narrow and arbitrary timeframe and not allowing for a record to be accumulated before any court, Sauer continued, “Under these highly irregular circumstances, applicants can hardly establish a clear and indisputable entitlement to the extraordinary relief they seek. The application should be denied on that basis alone.”

Furthermore, the argument proffered by the Venezuelans’ attorneys is weak, Sauer argued, specifically referring to the claim that detainees will be imminently deported without being given any notice or opportunity to file habeas claims. “But applicants ignore that the government has provided advance notice to AEA detainees (including the named petitioners) prior to commencing AEA removals. Detainees receiving such notices have had adequate time to file habeas claims — indeed, the putative class representatives and others have filed such claims,” Sauer wrote. He continued, “And the government has agreed not to remove pursuant the AEA those AEA detainees who do file habeas claims (including the putative class representatives).” He called on the Supreme Court to “dissolve its current administrative stay and allow the lower courts to address the relevant legal and factual questions in the first instance — including the development of a proper factual record.”

In comments to The Washington Stand, Chris Gacek, an attorney and the senior fellow for Regulatory Affairs at Family Research Council, observed that the American Civil Liberties Union (ACLU), which is involved in representing the detained Venezuelans, “threatened” to filed habeas petitions in every federal district court in the U.S. in order to “create some sort of massive disruption or something.”

Given that context, as well as the numerous TROs and nationwide injunctions issued against the Trump administration, Gacek commented that Supreme Court Chief Justice John Roberts “cares a great deal about the integrity of the courts, within the framework of being an institutionalist. But Donald Trump is not the greatest threat to the courts, this is, this mayhem that these judges are creating — not necessarily the Supreme Court here, but all of these activist cases.”

AUTHOR

S.A. McCarthy

S.A. McCarthy serves as a news writer at The Washington Stand.

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