Outside extraordinary situations such as a looming execution, the Supreme Court rarely intervenes in fast-moving events in the middle of the night with limited information. But that’s what the justices did on April 19 when a 7-2 majority ordered the Trump administration to halt the deportation of a few dozen Venezuelan migrants in Texas. On Friday, the court explained its reasoning, and the takeaway is that the justices don’t like being played for chumps.
Why the Supreme Court quashed Trump’s due-process-free deportations
After a late-night intervention, the court shut down the administration’s legal bait-and-switch.
May 19, 2025 The Washington Post
There are several twists and turns in the Trump administration’s manipulation on this subject, so bear with me. President Donald Trump in March invoked the Alien Enemies Act, a war-powers law last used in World War II, to target a Venezuelan gang called Tren de Aragua (TdA). The administration immediately deported about 137 Venezuelan nationals it accused of membership in the gang to a prison in El Salvador. These people had no chance for a hearing and are now detained there indefinitely.
A Justice Department memo obtained by USA Today shows that the Trump administration quite deliberately denied the accused migrants a chance to dispute the government’s allegations. “An alien determined to be an Alien Enemy,” the March 14 document says, “is not entitled to a hearing before an immigration judge, to an appeal of the removal order to the Board of Immigration Appeals, or to judicial review of the removal order in any court of the United States.”
Defending its policy at the Supreme Court, however, the Justice Department changed its tune. Less than three weeks after issuing that guidance and sending the migrants to a Salvadoran prison without judicial review, here’s what the Trump administration told the justices: “This case is not about whether TdA members subject to removal under the Alien Enemies Act get judicial review; they obviously do.” Obviously!
The court was clear. Yet less than two weeks after that, the Trump administration tried an end-run around its command. Lawyers for Venezuelans detained in Texas said on April 18 that the Trump administration appeared to be preparing another round of due-process-free deportations as early as that night, with only cursory notice. In less than 24 hours, the issue rocketed up to the justices, who ordered the government to pause. Buses of Venezuelans headed to an airport turned around after the case reached the high court.
Now the justices have explained their reasoning for that unusual intervention. First, they reiterated the settled understanding that the Constitution creates a minimum threshold of due process in immigration cases. White House Deputy Chief of Staff Stephen Miller has tried to gin up the GOP base to think allowing aliens a hearing before removal is a novel imposition by partisan judges. But the Supreme Court quotes one of its decisions from 1903 to emphasize: “We have long held that ‘no person shall be’ removed from the United States ‘without opportunity, at some time, to be heard.’”
Miller’s gamesmanship on the related case of Kilmar Abrego García clearly weighed on the justices as well. The Trump administration admitted to erroneously sending him to El Salvador, but it now says courts have lost jurisdiction over his fate. “The Government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador,” the Supreme Court observes. “The detainees’ interests at stake are accordingly particularly weighty.”
If the government is going to claim it can strip courts of jurisdiction over detainees by deporting them to a foreign prison, then naturally the justices will apply more scrutiny to efforts to deport them in the first place. Or to put a finer point on it: Alien Enemies Act removal to El Salvador, as the Trump administration would have it, is like an execution in that it is legally irreversible. That’s why the court’s extraordinary late-night intervention in this case has its closest analogy in last-minute death penalty appeals.
Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, dissented — but only on procedural grounds, arguing that the justices stepped in too quickly. Alito wrote that there was “only sketchy evidence about any imminent threat” of removal of alleged TdA members at the time the court ordered the government to stop.
Trump thanked Alito and Thomas for “attempting to protect our Country.” But the court’s most conservative justices never disputed the majority’s holding that due process is required. Trump is predictably attacking the court’s ruling as if it’s a major obstacle to his deportation agenda, even though the Alien Enemies Act probably applies, if at all, to only a few hundred migrants.
One question is how Miller (who seems to be acting as attorney general despite Pam Bondi’s nominal title) will respond. The White House aide’s plan for due-process-free deportations — a plan he has been thinking about since at least 2023 — has been quashed by the Supreme Court as he seethes on television and social media, promoting legal fictions. Miller recently floated suspending habeas corpus altogether, saying it “depends on whether the courts do the right thing.”
The Supreme Court’s Friday opinion definitely does not count as the right thing in Miller’s mind. If the great legal strategist is frustrated by the 7-2 rebuke the White House just suffered for its Alien Enemies Act bait-and-switch, he might give his habeas corpus brainstorm a try. That could help the justices return to unanimity.