By a vote of 7 to 2, the Supreme Court today ruled that two detainees who were deemed to be members of the Venezuelan gang Tren de Aragua (TdA) were entitled to injunctive relief against being summarily deported pursuant to President Trump’s Alien Enemies Act declaration. The same relief was extended to members of a putative class of similarly situated detainees in the Northern District of Texas. I’m going to lay out here what the Court ruled (and what it didn’t) and present a quick summary of the divide between the per curiam majority and the two dissenters, Justice Alito and Justice Thomas. (The ruling bears the somewhat confusing caption A.A.R.P. v. Trump. A.A.R.P. is of one of the plaintiffs, not the organization formerly known as the American Association of Retired Persons.)
The heart of the Court’s ruling, set forth in four paragraphs, is that the Trump administration failed to provide the detainees the due process that all nine justices, in the Court’s ruling in early April in Trump v. J.G.G., agreed that they were entitled to—namely, to “be afforded [notice] within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” The Court explains that the Trump administration “does not contest” that it “was poised to carry out removals imminently”—“as soon as the next day” after the district court denied their motion for a temporary restraining order. It notes the Trump administration’s position that it “is unable to provide for the return of an individual [Kilmer Abrego Garcia] deported in error to a prison in El Salvador,” and it states that the detainees’ interests in not being unlawfully removed “are accordingly particularly weighty.” It concludes that the Trump administration has clearly fallen short of its obligation to provide due process:
Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.
The Court remands the case to the Fifth Circuit to sort out “the precise process necessary to satisfy the Constitution in this case.”
In a 14-page dissent, Justice Alito, joined by Justice Thomas, concludes, first, that the Court lacks jurisdiction over the matter. (Dissent at 1-7.) The dispute here is over whether the district court’s failure to act on the detainees’ request for injunctive relief amounted to refusal of injunctive relief. Alito determines, second, that relief should not extend to members of the putative class, both because plaintiffs couldn’t show that class relief is available in a habeas proceeding and because it was “very questionable” whether the requirements for class certification could be met. (Dissent at 7-13.) Alito objects, third, to the Court’s grant of certiorari. (Dissent at 13-14.)
If my very quick skim is correct, Alito does not dispute that the two plaintiffs did not receive the due process to which they were entitled.
The Court does not address the separate question whether Trump’s invocation of the Alien Enemies Act is lawful. (I expect Trump to lose on that.) It also makes clear that the Trump administration remains free to “remove the named plaintiffs or putative class members under other lawful authorities.”