IELR Blog

On April 19, 2025, around 1:00 a.m. on Saturday, the Supreme Court released a dissent by two of its conservative justices and issued an unsigned order directing the Trump administration not to remove any member of the putative class of detainees from the United States until further order of the court.[1]

On April 19, the American Civil Liberties Union (ACLU) brought suit in three different courts within five hours. In the U.S. District Court in Abilene, they alleged that Immigration and Customs Enforcement (ICE) officials at the Bluebonnet Detention Center in Anson had started informing Venezuelan immigrants that they could face deportation as soon as Friday night, April 18. Hence, they sought an immediate order protecting all migrants in the Northern District of Texas who might be deported under the Alien Enemies Act (AEA). When Judge James Wesley Hendrix denied their request, the ACLU counsel filed a similar request to the U.S. Court of Appeals.[2]

The ACLU then made an emergency petition to the Supreme Court, requesting an immediate halt to any deportations, since many of the migrants had “already been loaded onto buses, presumably headed to the airport.”

On March 15, President Donald Trump issued an executive order based on the Alien Enemies Act, a 1798 law permitting the president to detain or deport citizens of an enemy nation without a hearing or any other review by the court if Congress declares war or there is an “invasion” or “predatory incursion.” Until March 15, Presidents had only invoked the law three times, during the War of 1812, World War I, and World War II.

The March 15 order stated that a large Venezuelan gang known as Tren de Aragua is “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. The E.O. also stated that any Venezuelans who were 14 years of age or older could be “apprehended, restrained, secured, and removed as Alien Enemies.”[3]

On April 7, the Supreme Court granted the Trump administration’s request to block the order of U.S. District Judge James Boasberg, barring the government from removing the individual plaintiffs in the case and, later, anyone else under the Alien Enemies Act.[4] The ruling explained that challenges to a designation under the AEA  must be filed as a petition for habeas corpus in the place where the detainees are being held, rather than in the U.S. District Court in Washington, D.C., as a challenge under the Administrative Procedures Act. The court continued that anyone detained under the AEA “must receive notice after the date of this order that they are subject to removal under the law.” The court stated that the government must give that notice “within a reasonable time and in such a manner as will allow them to seek habeas relief in the proper venue before such removal occurs.”[5]

The ACLU argued that removal without sufficient notice and time to seek habeas relief would clearly violate the Supreme Court’s April 7 ruling. In this case, the notices were approximately 24 hours before the intended deportation and were in English, although most of the people designated did not speak English. The ACLU said they were only trying to preserve the status quo so that the men are not sent to CECOT in El Salvador before the U.S. judicial system can provide them due process.[6]

In his brief on the afternoon of April 19, Solicitor General D. John Sauer asked the justices to deny the detainees’ request, characterizing it as “unprecedented,” “extraordinary,” and “fatally premature.”[7]

During a hearing on Friday evening in front of Judge Boasberg, Drew C. Ensign, a Justice Department lawyer, said no flights were scheduled to depart from the Bluebonnet center on Friday night or Saturday, and the government would notify the migrants at least 24 hours before they were deported.[8]

On April 19, Justice Alito issued a 5-page dissent, mostly based on technical grounds, including that: it is not clear that the court had jurisdiction; and it is questionable whether petitioners complied with the general obligation to seek emergency injunctive relief in the District Court before seeking such relief from an appellate court.  The dissent also states that the petitioners’ allegations that they were in imminent danger of removal provide little concrete support for those allegations.[9]

Analysis

The court’s order and the Alito dissent show that the majority of the justices on the court are losing confidence and patience with the tactics of the Trump administration with respect to immigration and deportation. The administration started the deportation of migrants even before the March 15 order invoking the AEA, thereby almost eliminating any opportunity of notice or a hearing for the deportees; the DOJ has refused to respond to Judge Boasberg’s inquiries about whether the administration followed his two temporary restraining orders (TROs) forbidding any removal of the named plaintiffs;[10] and the DOJ has refused to respond to Judge Xinis’ orders in the Garcia Abrego case on exactly what the administration has done to return him following the U.S. Supreme Court’s April 10 order for the DOJ to facilitate his return.[11] Normally, the Supreme Court takes months to act in cases, but this time it acted within hours and issued an order in the wee hours of the morning on Saturday before the government had a chance to respond.[12]

Perhaps the majority of the justices are reacting to the April 14 meeting in the White House in which Trump and El Salvador’s President Nayib Bukele denied any responsibility or authority to return Abrego Garcia. They may also be reacting to Secretary of State Marco Rubio’s declaration that “no court in the United States has a right to conduct the foreign policy of the United States.”[13] Clearly, the majority of the court is not pleased with the administration’s rendition program.

From the DOJ’s positions in the various cases, the administration’s public statements, and the decisions of the several courts, the separation of powers is experiencing a historical tension.

[1]  A.A.R.P., et al. v. Trump, President of U.S., et al, 24A1007,Order in Pending case, April 19, 2025

[2]  For the factual background and procedural history, see Amy Howe, Justices temporarily bar Government from removing Venezuelan men under Alien Enemies Act, SCOTUSblog, April 19, 2025, on which this article relies.  See also Steve Vladeck, 144. The Supreme Court’s Late-Night Alien Enemy Act Intervention, April 19, 2025.

[3]  Id.

[4]  Id.  Donald J. Trump, President of the United Staters et al v. J.G.G., et al, U.S. Supreme Court, 604 U.S. __ (2025.

[5]  Howe, supra.

[6]  Id.

[7]  Id.

[8]  Alan Feuer, Hamed Aleaziz and Abbie Van Sickle, Supreme Court, for Now, Blocks Deportation of Migrants Under Wartime Law, N.Y. Times, April 20, 2025.

[9] Steve Vladeck, The One First, “Justice Alito’s Misbegotten Dissent in A.A.R.P., April 21, 2025.

[10]  J.G.G. et al, v. Donald J. Trump, et al, U.S. District court for the District of Columbia, C.A. No. 25-766 (JEB).Memorandum Opinion, April 16, 2025.

[11]  See Bruce Zagaris, US Supreme Court Rules that Wrongly Deported Migrant Must Have Hearing and 4th Circuit Denies Government’s Emergency Stay Request, 41 Int’l Enforcement L. Rep. __ (May 2025).

[12]  Adam Liptak, An Urgent Supreme Court Order Protecting Migrants Was Built for Speed, N.Y. Times, April 19, 2025.  See also Vladeck, id.

[13]  Jamelle Bouie, America, This Is an Old and Brutal Tyranny, N.Y. Times, April 16, 2025.