By Joel D. Joseph, author of Black Mondays:
Worst Decisions of the Supreme Court (6th Edition)
I just finished writing the sixth edition of Black Mondays: Worst Decisions of the Supreme Court when the nation's highest court once again undermined the integrity of the Court and justice system in the United States. The District Court issued an injunction requiring the return of immigrants taken off the street without a hearing and flown to a maximum security prison in El Salvador. The Court of Appeals affirmed the ruling. The Supreme Court, even though it agreed that the immigrants were entitled to a hearing, dissolved the injunction and forced the immigrants to stay in one of the most dangerous prisons in the world.
The case is Donald Trump v. JGG. Chief Justice Roberts wrote, "The Government expressly agrees that "TdA (Tren de Aragua,Venezuelan gang) members subject to removal under the Alien Enemies Act get judicial review." The Alien Enemies Act has been used by three previous presidents, but only in wartime: by James Madison against British immigrants during the War of 1812, by Woodrow Wilson against German immigrants in World War I, and by Franklin Roosevelt against Japanese, German, and Italian immigrants in World War II. The act requires that war be declared by an act of Congress or a that there was an invasion by a foreign nation. That changed on March 14, 2025, when President Trump invoked the Alien Enemies Act to address an alleged "Invasion of the United States by Tren De Aragua", a criminal organization based in Venezuela. Proclamation No. 10903, 90 Fed. Reg. 13033. There is, of course, no ongoing war between the United States and Venezuela. Nor is Tren de Aragua itself a "foreign nation".
The Court recognized that "It is well established that the Fifth Amendment entitles aliens to due process of law" in the context of removal proceedings. So, the detainees are entitled to notice and opportunity to be heard "appropriate to the nature of the case".
However, the facts of the case are chilling, reminiscent of Nazi SS thugs taking Jews off of the streets in Germany. In mid-morning in Hagerstown, Maryland, U.S. Immigration and Customs Enforcement agents have been at work for hours. "We're with immigration. We have a warrant for your arrest," one of the agents told a 47-year-old Venezuelan man stopped as he approached his work van. Also arrested on March 12th was Kilman Armando Abrego Garcia, 29, who the government now admits was deported in error. Garcia was arrested in Baltimore after working a shift as a sheet metal apprentice who had just picked up his 5-year-old son who has autism. These men, and many others, were flown to Texas. In mid-afternoon, the detainees were taken from El Valle detention center in Raymondville, Texas, to buses where they were taken to Harlingen Air Force Base.
On March 15, at 5 p.m., U.S. District Court Judge Boasberg began a court hearing to determine whether to certify the class of those arrested and grant a temporary restraining order for the class. Boasberg asked deputy assistant attorney general Drew Ensign if the Trump administration was planning to carry out deportations using the Alien Enemies Act in the next 48 hours. Ensign replied that he did not know, and Boasberg gave Ensign 40 minutes to find out. Meanwhile, at Harlingen, Texas, two planes with Venezuelan deportees took off, one at 5:26 p.m. and the other at 5:44 p.m. Eastern time. Boasberg resumed the hearing around 5:55 p.m., with Ensign saying that he still had no specific information about the Trump administration's plans.
At 6:48 p.m., having stated that he would certify the class and grant a temporary restraining order, Boasberg told the DOJ lawyers "You shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States." The New York Times reports that at this point, "one of the planes was over Mexico; a second was over the Gulf of Mexico and a third had not yet taken off". Though Boasberg specifically ordered that any planes in the air carrying those covered by his order be turned back and those individuals returned to the U.S., the Trump administration directed the flights to proceed, violating the verbal court order. The hearing ended, and the court posted Boasberg's written order, certifying the class and granting a temporary restraining order for the class.
At 7:36 p.m., ten minutes after Boasberg's written order was published, a third deportation flight departed from Harlingen. Later that evening, each of the three planes landed at Soto Cano air base in Comayagua, Honduras. The planes then landed in San Salvador, El Salvador, in the early hours of the morning of March 16th. The District Court, for its part, surmised that "the Government knew as of 10 a.m. on March 15 that the Court would hold a hearing later that day", yet it "hustled people onto those planes in hopes of evading an injunction or perhaps preventing [individuals] from requesting the habeas hearing to which the Government now acknowledges they are entitled". 2025 WL 890401. Rather than turn around the planes that were in the air when the Court issued its order, the federal government landed the planes full of alleged Venezuelan nationals in El Salvador and transferred them directly into El Salvador's Center for Terrorism Confinement (CECOT).
The Appeals
The Department of Justice appealed Boasberg's order to the Court of Appeals for the District of Columbia Circuit, asking it to block the order. On March 24, a three-judge panel heard arguments in the case. During the hearing, Judge Millett noted that the deportees were given no opportunity to challenge their removal and said "Nazis got better treatment under the Alien Enemies Act." Two days later, the court denied the appeal in a 2-1 ruling. Henderson and Millett wrote concurring statements, and Walker, a Trump appointee, dissented.
Chief Justice Roberts, joined by Justices Alito, Kavanaugh, Thomas and Gorsuch, overturned the injunction thus keeping the plaintiffs, even those wrongfully arrested, detained in the dangerous El Salvadoran prison.
In dissent, Justices Sotomayor, Kagan, Jackson and Barrett-- all females, wrote, "Three weeks ago, the Federal Government started sending scores of Venezuelan immigrants detained in the United States to a foreign prison in El Salvador. It did so without any due process of law, under the auspices of the Alien Enemies Act, a 1798 law designed for times of war."
The dissenters continued, "Critically, even the majority today agrees, and the Federal Government now admits, that individuals subject to removal under the Alien Enemies Act are entitled to adequate notice and judicial review before they can be removed. That should have been the end of the matter. The Court's legal conclusion is suspect. The Court intervenes anyway, granting the Government extraordinary relief and vacating the District Court's order on that basis alone. It does so without mention of the grave harm Plaintiffs will face if they are erroneously removed to El Salvador or regard for the Government's attempts to subvert the judicial process throughout this litigation. Because the Court should not reward the Government's efforts to erode the rule of law with discretionary equitable relief, I respectfully dissent."
(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).
Post Article Comment and Rate This Article
