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President Donald Trump shakes hands with Supreme Court Justice Samuel Alito after Mark Esper was sworn in as Secretary of Defense during a ceremony in the Oval Office at the White House in Washington, Tuesday, July 23, 2019. (AP Photo/Carolyn Kaster)
The U.S. Supreme Court’s order blocking the Trump administration from carrying out certain deportations under the Alien Enemies Act (AEA) was “hastily and prematurely granted” — nor was it “necessary or appropriate” — said Justice Samuel Alito in a blistering dissent Saturday after the decision was handed down.
“In sum, literally in the middle of the night, the 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,” Alito wrote in the fiery, five-page rebuke.
“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 said, noting how Justice Clarence Thomas also dissented Saturday.
“Both the Executive and the Judiciary have an obligation to follow the law,” Alito proclaimed. “The Executive must proceed under the terms of our order … and this Court should follow established procedures.”
The Saturday order and deportations case comes in the aftermath of an April 7 Supreme Court ruling, which dissolved a nationwide injunction barring summary deportations under the auspices of the obscure wartime law. All nine justices voted against the government’s use of the AEA without due process.
Last week, attorneys with the American Civil Liberties Union (ACLU) filed a petition for the writ of habeas corpus in Texas federal court, challenging the “AEA Process” as a whole. The plaintiffs also filed for a temporary restraining order and class certification.
Understood by the nation’s high court, habeas “has traditionally been a means to secure release from unlawful detention” and is a “means of contesting the lawfulness of restraint and securing release.” Under the basic habeas standard, federal courts consider whether any given detention violates federal law or the U.S. Constitution.
On Thursday, U.S. District Judge James Wesley Hendrix — a Donald Trump appointee — denied the motion for a restraining order. The court credited a statement from Department of Justice attorneys that none of the plaintiffs faced “imminent risk of summary removal” under the AEA. Hendrix reserved ruling on the class certification motion. The ACLU quickly filed an interlocutory appeal on Friday with the U.S. Court of Appeals for the 5th Circuit, stylized as an emergency request for a temporary restraining order.
That appeal was still pending when the plaintiffs filed their emergency application for an emergency injunction with the Supreme Court, as pointed out by Alito on Saturday.
“Shortly after midnight yesterday, the Court hastily and prematurely granted unprecedented emergency relief,” he said in his dissent.
“The Court ordered ‘[t]he Government’ not to remove a ‘putative class of detainees’ until this Court issues a superseding order,” Alito explained. “Although the order does not define the ‘putative class,’ it appears that the Court means all members of the class that the habeas petitioners sought to have certified, namely, ‘[a]ll noncitizens in custody in the Northern District of Texas who were, are, or will be subject to the March 2025 Presidential Proclamation entitled ‘Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua’ and/or its implementation.””
Alito said that he was unsure whether the Supreme Court had the jurisdiction to make such a ruling in the AEA deportations case, noting how “the All Writs Act does not provide an independent grant of jurisdiction,” per his dissent filing.
“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,” Alito said. “This Court, however, refused to wait. But under this Court’s Rule 23.3, ‘[e]xcept in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.’”
According to Alito, the only papers submitted to the Supreme Court were those filed by the applicants. The court did not order or receive a response from the government regarding the “factual allegations or any of the legal issues presented by the application,” the justice said. “And the Court did not have the benefit of a Government response filed in any of the lower courts either,” he added.
When the applicants first raised their allegations in district court, Hendrix provided the government with 24 hours to respond and was “poised to rule expeditiously,” per Alito. The lower court dissolved the government’s “obligation to respond” after counsel for applicants “filed their hasty appeal” with the Supreme Court, which in the district court’s view, “deprived it of jurisdiction to rule,” Alito said.
Another point of contention for the George W. Bush appointee was that while the Trump administration was unable to respond to the allegations being made about deportations being imminent, Alito said a DOJ lawyer in a different case told the U.S. District Court judge who is overseeing it on Friday that “no such deportations” were being carried out by the government or “planned” to occur.
“The papers before us, while alleging that the applicants were in imminent danger of removal, provided little concrete support for that allegation,” Alito concluded. “Members of this Court have repeatedly insisted that an All Writs Act injunction pending appeal may only be granted when, among other things, ‘the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances.’”
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