Supreme Court blocks deportation flights—for now

In an early morning decision, the US Supreme Court blocked the Trump administration from attempting to fly another batch of migrants out of the country without due process. The high court’s decision was notable not just for the time it was released—1 a.m. Saturday morning—but because it leapfrogged a lower court that was still considering activity in the case.

“The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court,” the order said, noting that Justices Samuel Alito and Clarence Thomas had dissented, and that Alito was planning to write a response.

The emergency ruling was a clear indicator that the high court, or at least seven of the nine justices, have finally realized that the Trump administration will not act in good faith when it comes to its desire to send people off for indefinite detention in a foreign gulag. The Supreme Court has already told the administration that it can’t send migrants to other countries without giving them a chance to challenge their removal, but immigration officials have been trying to get around that order by moving detainees to jurisdictions they believe aren’t covered by the earlier decision.

On Friday night, lawyers in Texas filed an emergency motion on behalf of clients who’d been told by immigration officials that they had been identified as members of the Tren de Aragua gang and were going to be removed from the country within 24 hours under the Alien Enemies Act. In their filing, the lawyers said the Trump administration was already busing dozens of men to a Texas airport for flights scheduled, they suspected, to depart for El Salvador.

The Trump administration has been invoking a 200 year-old law to try to suggest it has the power to remove people from the US without due process. As Noah Lanard and Isabela Dias explained in Mother Jones last month:

On March 14, President Donald Trump quietly signed a proclamation invoking the Alien Enemies Act—a 1798 law last used during World War II. The order declared that the United States is under invasion by Tren de Aragua. It is the first time in US history that the 18th-century statute, which gives the president extraordinary powers to detain and deport noncitizens, has been used absent a Congressional declaration of war. The administration then employed the wartime authority unlocked by the Alien Enemies Act to quickly load Venezuelans onto deportation flights from Texas to El Salvador…

The administration invoked the act last month when it sent In response to a class action lawsuit brought by the ACLU and Democracy Forward, federal judge James Boasberg almost immediately blocked the Trump White House from using the Alien Enemies Act to summarily deport Venezuelans, and directed any planes already in the air to turn around. But in defiance of that order, the administration kept jets flying to El Salvador.

The high court’s new order does not address the merits of Trump’s use of the Alien Enemies Act. But it does indicate that some of the justices realize that these are not ordinary times, and that once people have been put on planes to El Salvador, the ability of the US courts to help them is much diminished.

The administration has produced scant evidence that many of the people it has already sent to El Salvador are in fact members of gangs, or even criminals. Many of the deportees seem to have been targeted simply because they had the wrong tattoos.

“This doesn’t just happen overnight,” immigration lawyer Joseph Giardina, who represents one of the men now in El Salvador, told my colleagues recently. “They don’t get a staged reception in El Salvador and a whole wing for them in a maximum-security prison…It was a planned operation, that was carried out quickly and in violation of the judge’s order. They knew what they were doing.”