Supreme Court Continues to Block Summary Deportations Under Alien Enemies Act

The Supreme Court issued an emergency injunction for a group of detained Venezuelan immigrants facing imminent” risk of removal under Donald Trump’s invocation of the Alien Enemies Act of 1798, reinforcing its unanimous ruling of 19 April 2025 which blocks such summary deportations without due process “until further order of this court.”

The unsigned order, with Justices Alito and Thomas dissenting, said:

The Fifth Circuit [Court of Appeals] erred in dismissing the detainees’ appeal for lack of jurisdiction. Appellate courts have jurisdiction to review interlocutory orders that have “the practical effect of refusing an injunction.” [citation] A district court’s inaction in the face of extreme urgency and a high risk of “serious, perhaps irreparable,” consequences may have the effect of refusing an injunction. [citation] Here the District Court’s inaction—not for 42 minutes but for 14 hours and 28 minutes—had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm. Accordingly, we vacate the judgment of the Court of Appeals.

The ruling reiterated in detail the key instructions of its 19 April ruling, in a lecturing manner. It detailed that the federal government could not contradict the detainees’ description of the notice provided to them, which was clearly far short of what the Supreme Court had ordered as necessary. It also detailed that deportation was imminent.

Then the ruling noted that the government has proven unable to retrieve a person deported in error to a foreign prison where detention is indefinite. The Court wrote:

The detainees’ interests at stake are accordingly particularly weighty. Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster. But it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case. We remand the case to the Fifth Circuit for that purpose.

To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.

Most lower courts have been ruling against Trump’s use of the Alien Enemies Act to rendition Venezuelans to third countries regardless of their legal standing on the basis of evidence-free accusations and without due process. One lower court has ruled that Trump’s use of the AEA is legitimate. No other judge has agreed with that finding so far.

The Supreme Court said such deportations must allow detainees a minimal amount of due process, but it left dangling the legitimacy of Trump’s use of the AEA in peacetime. The Court has ordered the government to “facilitate” retrieval of one wrongfully renditioned man and has said nothing about what should become of a few hundred others who were renditioned to a prison in El Salvador without due process.

This ruling allowed some breathing space for Venezuelans in danger of being sent to a third country without due process, but it did not resolve the main issues driving that crisis. At the same time, it enraged Trump who wants the Court to let him do anything he wants. The main issues involved in the situation are not resolved by this ruling, only kicked down the road.

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