SCOTUS Freezes Alien Enemy Removals In Rare, Urgent, Late-Night Order

A majority of Supreme Court justices temporarily blocked the Trump administration from removing a group of Venezuelans under the Alien Enemies Act in an order issued in the early hours of Saturday. The order came at lighting speed for the high court, and signals a staggering level of urgency as the Trump administration continues to seek to use a dubiously invoked wartime power to remove Venezuelans to an El Salvador detention camp without any semblance of due process.

The court directed the government “not to remove any member of the putative class of detainees from the United States until further order of this Court.”

The order, which was unsigned, said that Justices Samuel Alito and Clarence Thomas dissented.

The Supreme Court issued the order only hours after attorneys for the ACLU filed an emergency application to halt the removals of a group of Venezuelans that, it said, had received notices from ICE informing them that they were to be imminently removed from the United States under the Alien Enemies Act.

The speed with which the court acted is itself a signal of the gravity of the situation. The Trump administration has spent the month since it removed more than 200 people to an El Salvador detention camp claiming both that once people have been removed from U.S. territory, there is nothing the courts can do to retrieve them, and that the President’s foreign policy powers are so broad as to block the judiciary from being able to conduct any kind of inquiry.

The Supreme Court’s Saturday morning order is extraordinary in part for its speed. But as several legal observers noted, it’s also unusual because it came before Justice Alito could finish writing his dissent. The order stated that Alito’s dissent would “follow.”

Separately, as legal commentator Steve Vladeck noted, the order also suggested that the Trump administration’s pattern of blatant misrepresentations in the Alien Enemies cases may be causing the court to act more aggressively. Earlier on Friday evening, Deputy Assistant Attorney General Drew Ensign told D.C. Chief Judge James Boasberg in an emergency hearing over the removals that “no planes” were expected to leave on Friday or Saturday. While those statements were not before the Supreme Court, the justices acted with such speed as to suggest that, if they were aware of them, they were not taking them at face value — the justices immediately froze removals until further action by the high court.

The latest showdown over the Trump administration’s Alien Enemies removals had been escalating throughout Friday.

The last round of removals under the wartime power caused a series of massive scandals that strike at the heart of constitutional governance. In one case, the administration admitted that it accidentally removed an El Salvador citizen — Kilmar Abrego Garcia — contra an immigration court order saying he could not be removed to El Salvador due to the danger he might face there. In spite of admitting its error, the Trump administration then argued that the courts could not direct it to remedy the error. After the Supreme Court directed the administration to “facilitate” Abrego Garcia’s release from custody in El Salvador and be ready to update the courts on its efforts, the Trump administration declined to provide meaningful information to a lower court and refused to ask the Salvadoran government for Abrego Garcia’s release.

It all fed into the burgeoning impression that the administration is committed to flouting the judiciary so that it can remove people from the country and then refuse to retrieve them, while claiming that the courts are powerless to do anything about it.

On Thursday, rumors began to spread that the Trump administration was set to conduct another round of Alien Enemies Act removals. One immigration attorney told TPM that day that a group of Venezuelans had been moved to Bluebonnet Detention Center in northern Texas.

In court filings throughout Friday, the ACLU alleged that the Venezuelans at Bluebonnet had been given notices of removal under the Alien Enemies Act, and had been told by ICE officials that the papers “were coming from the President.” Per one copy of the notice obtained by the ACLU, the Venezuelans were told in English that they had the opportunity to make a phone call.

The ACLU first filed an emergency motion on Friday in the Northern District of Texas before Judge James Wesley Hendrix, seeking to halt what they described as “imminent” removals. At least some of the Venezuelans were purportedly moved from the Southern District of Texas, where there’s a standing court order that freezes Alien Enemies Act removals, to the Northern District of Texas, where no such order exists.

After Hendrix did not rule, the ACLU made an emergency appeal to the 5th Circuit on Friday afternoon. The group then appealed to the Supreme Court via its emergency docket, and also asked D.C. Chief Judge James Boasberg in a separate case to issue a 30-day nationwide injunction barring further Alien Enemies Act removals.

Boasberg declined to issue that hold after a quickly arranged phone hearing on Friday evening. At the hearing, ACLU attorney Lee Gelernt said that he was prepared to sue in each of the country’s more than 90 judicial districts to prevent further removals.

Hours later, around 2 a.m., the Supreme Court ordered a halt to the removals, for now.