Representing the White House’s political line, Deputy Chief of Staff Stephen Miller said last month: “It is fundamentally incompatible to have a country and have individual expulsions adjudicated by a single district court judge.” The Supreme Court’s ruling will ensure that individual expulsions under the AEA are adjudicated by single district court judges.
As the majority wrote: “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded 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.” Note the pointed “actually.”
That means migrants whom the government accuses of being members of Tren de Aragua, a Venezuelan gang, will be able to argue in court that they are not. They can make the government show its evidence and they can call witnesses. They can argue that the AEA — which can only be activated when a “foreign nation or government” is waging war against the United States — does not apply to the Venezuelan gang.
Miller’s “fundamentally incompatible” remarks weren’t just an example of an administration’s political messaging exceeding its legal position. In a filing last week in the U.S. District Court for the District of Columbia, the Trump administration dismissed the idea that the government needed to give migrants a chance to seek judicial review before deporting them under the AEA.
“The statute permits absolute discretion to establish the conditions and processes the Executive will use,” the government said. Though it reluctantly conceded that migrants “may file a petition for habeas,” it sneered that “nothing requires the government to delay removal to permit access to habeas on the alien’s preferred timeline.” The government wanted to resume the summary deportations that a judge had paused.
The Supreme Court is not allowing that. As Justice Sonia Sotomayor noted in dissent: “To the extent the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court.” But she (as well as the other Democratic-appointed justices and Justice Amy Coney Barrett) would have gone further. They would have left in place the orders by District Judge James E. Boasberg blocking AEA deportations altogether.
The majority vacated Boasberg’s orders because it deemed D.C. the wrong venue for the plaintiffs — who are being held in Texas — to challenge their deportations. Though the Supreme Court now says Boasberg lacked jurisdiction, it agreed with him that the Trump administration cannot deport migrants without due process. Boasberg’s orders prevented further unlawful removals since the Trump administration invoked the AEA on March 15 to fly migrants to a prison in El Salvador.
Unfortunately, the Supreme Court’s reversal of Boasberg’s order does politically reward the administration’s extremely aggressive and bad-faith conduct in this case. It’s one thing to tolerate aggressive executive-branch antics when the issue is government appropriations or hiring; it’s another when the issue is the denial of due process before people are carted off to a foreign prison. It’s reasonable to wonder if some of the tough-guy talk out of the Trump administration made certain justices more timid about ruling against it outright.
But the Supreme Court has always needed to make prudential judgments about how and when to bring its legitimacy to bear against the executive branch. In a related case about whether a district judge could order the Trump administration to return a man the government admits it sent to El Salvador in error, Judge J. Harvie Wilkinson III wrote: “A reciprocal respect for the roles of the Executive and the Judiciary may be too much to hope for in this most fraught and polarized of times, but it remains the only way that our system of constitutional governance can ever hope to work.”
Though the Trump administration is disrespecting lower court judges, it has yet to put the Supreme Court on political blast. The justices’ close-call AEA decision at least delays that confrontation. But if the White House’s cowboy lawyers wrongly interpret the decision as a green light to escalate their aggressiveness, the confrontation will come soon enough.
