What to know about the Supreme Court’s midnight Alien Enemies Act order

Less than two weeks after the Supreme Court allowed President Donald Trump to use a controversial 18th century wartime authority to speed deportations, the issue has rocketed back to the justices in a second short-fuse appeal with enormous potential consequences. The situation was entirely foreseeable. After handing down an opaque 5-4 order earlier this month that allowed both sides to claim victory, the nation’s highest court is being asked for a second time to halt the administration from using the Alien Enemies Act. That review will take place as lower courts begin to wrangle over what kind of notice the government must provide to those targeted under the act and what steps the migrants can take to fight it. In a rare overnight order handed down by the Supreme Court early Saturday morning, a majority of justices blocked the Trump administration from deporting a group of immigrants in Texas. Two conservatives — Justices Clarence Thomas and Samuel Alito — dissented from the decision. The court’s brief order did not explain its reasoning. The court ordered the Trump administration to respond to the emergency appeal “as soon as possible,” which it did later Saturday. In the meantime, the court said, “The government is directed not to remove any member of the putative class of detainees from the United States until further order of this court.” The Trump administration responded later Saturday, telling the Supreme Court it wants the authority to remove the Venezuelans detained in Texas under laws other than the controversial Alien Enemies Act while the litigation over their potential deportations continues. And the Supreme Court signaled it is likely to say more in coming days or weeks about what will happen to the migrants at the center of several fast-moving court cases over the Alien Enemies Act playing out in courtrooms in New York, Colorado and Texas. The White House on Saturday trained its attention on the lawsuits, rather than the Supreme Court itself. “President Trump promised the American people to use all lawful measures to remove the threat of terrorist illegal aliens,” White House press secretary Karoline Leavitt said, adding, “We are confident in the lawfulness of the administration’s actions.” The White House has alleged that the people it has deported under the act are members of the Venezuelan Tren de Aragua gang, but evidence proving as much has been scant. Government lawyers have cited tattoos on immigrants or clothing linked to gangs in court papers to allege criminality. An uncertain order The Supreme Court issued a murky, unsigned order on April 7 in another emergency appeal dealing with the Alien Enemies Act, a 1798 law Trump invoked to bypass the regular process required to remove certain people in the country illegally. The court technically allowed the administration to continue to use the controversial law — a win for Trump. And it blocked a key legal pathway civil rights groups were attempting to use to challenge Trump’s invocation of the law so they could shut down its use wholesale. At the same time, the court said migrants subject to deportation under the act were entitled to notice and an opportunity to challenge their removal through federal habeas corpus petitions — suits brought by people who claim they are being detained by the government unlawfully — marking at least a partial win for migrants. How much notice? The court didn’t say. How to reconcile the fact that habeas petitions are typically filed by prisoners to seek release from detention, not to halt deportations? Near silence. And what about the more than 200 Venezuelans who were already rushed onto planes and deported to El Salvador? Not clear. To be sure, the Supreme Court is often reticent to get into details on its emergency docket — and for good reason. Often the factual record is uncertain. And the justices are usually eager to avoid changing the law without a more thorough briefing and oral argument. But the April 7 decision, perhaps prudent in its caution, nevertheless gave Trump a ton of wiggle room. The White House took all of it, claiming complete victory and starting the process of relying on the act again. Following the Supreme Court’s lead, the American Civil Liberties Union filed a series of habeas lawsuits seeking to protect identified clients as well as “similarly situated” Venezuelans who could potentially be targeted under the Alien Enemies Act. Several lower courts — including one in New York and another in Texas — issued temporary orders blocking the administration from deporting people under the act while it considers the cases. Those orders protect only migrants in the geographic regions covered by the federal courts in play. How we got here This week, immigrant rights groups said a number of Venezuelan detainees in northern Texas not covered by any earlier orders began receiving notice from the government that they are subject to deportation under the act. The ACLU has said those notices — now required by the Supreme Court — were in English, indecipherable to at least some of the Spanish-speaking detainees. The notices, the ACLU said, did not indicate how the people who received them could challenge their removal. The group said the detainees faced “imminent” removal, despite the Supreme Court’s direction that they have enough time to seek an independent review of their case. Two immigrants filed a habeas petition in a federal district court in Abilene, Texas, on Wednesday, seeking a temporary order blocking their deportation and the removal of “similarly situated” people held at the Bluebonnet Detention Center in Anson, Texas. US District Judge James Hendrix, whom Trump nominated to the bench in his first term, denied the request for the two migrants, noting the government had “answered unequivocally” that it did not intend to remove them, so they were not at immediate risk of deportation. Hendrix said he “reserves decision” on whether the ACLU could protect a wider class of unknown migrants but said he would order written arguments on that question in “due course.” Whether the groups can establish a “class” of migrants affected by the case is a technical but important point: Without a class, each migrant who receives notice of potential removal will have to file their own habeas petition and fight their case individually. Habeas petitions are notoriously difficult to win in federal court, and it will be a challenge for most immigrants to obtain lawyers. Unsatisfied with the result — and perhaps untrusting of the Trump administration to keep its word — the ACLU appealed to the New Orleans-based 5th US Circuit Court of Appeals. A panel of appellate court judges in the conservative court denied the request. The migrants then turned to the Supreme Court on Friday, filing their emergency appeal with Alito, who handles quick-turn appeals from the 5th Circuit. Notably, the Supreme Court did not technically grant the ACLU’s request in its middle-of-the-night order, but it nevertheless gave the groups what they were seeking: a temporary halt on deportations at issue until it had more time to review the appeal. That decision doesn’t necessarily mean the migrants will win their case, only that they can’t be removed for now. What happens next The ball remains with the Supreme Court. In its overnight order, the justices blocked the Trump administration from taking further action on the Texas detainees until it provides more clarity. It also ordered the Department of Justice to respond to the ACLU’s request “as soon as possible.” The Justice Department did so Saturday evening, arguing the justices should deny the request to halt removals under the Alien Enemies Act. “The government has agreed not to remove pursuant the AEA those AEA detainees who do file habeas claims,” wrote US Solicitor General D. John Sauer, the Trump administration’s top appellate attorney. “This court should dissolve its current administrative stay and allow the lower courts to address the relevant legal and factual questions in the first instance — including the development of a proper factual record.” Sauer, in other words, argued the case had moved too quickly for lower courts to establish the facts. But as a backup argument, the Trump administration then told the high court it wants clarity that it may remove at least some of the same migrants under less controversial immigration laws. The Supreme Court’s order Saturday did not distinguish between deportations under the Alien Enemies Act and other laws that require normal due process before removing people from the country. Sauer’s latest brief lacked much of the bluster of previous written arguments the administration has submitted to the Supreme Court and was relatively straightforward. The tone may reflect the unusual step the high court took in its order early Saturday shutting down the administration’s effort to quickly remove the migrants. Alito, meanwhile, indicated he would explain his decision to dissent in an opinion that will likely come in a matter of days. This story has been updated with additional developments.