High court rulings in Venezuelan deportations wins for rule of law

This week’s Supreme Court ruling on the deportations of Venezuelan migrants under the Alien Enemies Act created confusion. Some media coverage spoke of the court handing the administration a win, others of the court blocking the deportations. The administration celebrated it as a victory. But the reality is more complicated — and somewhat encouraging, suggesting the high court is willing to curb President Donald Trump’s authoritarian moves.

That view was reinforced Thursday when the court unanimously ordered the administration to return one man, Kilmar Garcia, whom it admitted was mistakenly deported.

Both cases are deeply troubling. Trump invoked the 1798 Alien Enemies Act to order the deportation of Venezuelan migrants said to be members of the Tren de Aragua gang — not to Venezuela but to a notorious prison in El Salvador, under an arrangement with that country’s strongman president, Nayib Bukele. The men deported under this order, 238 so far, were summarily loaded on a plane and taken to El Salvador. Many had no opportunity to contact families or attorneys. Fewer than half had been approved for removal through the routine immigration court process. Garcia was one of them.

A federal judge in Washington, James Boasberg, ordered the deportations halted — but the government acted so quickly that by the time he issued his ruling, the planes carrying the migrants had already left, and the government claimed it had no way to bring the deportees back since they were now in the custody of El Salvador.

In a 5-4 ruling, the Supreme Court reversed Boasberg’s restraining order, which the administration celebrated and its critics deplored. But what the court actually said was that while deportations under the Alien Enemies Act could proceed, deportees were entitled to due process — including enough advance notice that they could file a habeas corpus petition and argue that the law could not be applied to them. Boasberg’s order was lifted because the majority agreed that the case belonged in a federal court in Texas, where the men had been detained before deportation.

The dissenters, who included Trump appointee Amy Coney Barrett, criticized the court for hearing the case on an emergency basis without full arguments and without examining the underlying issue of whether the Alien Enemies Act can be invoked when the U.S. is not at war to classify an entire category of migrants as enemy invaders.

The ruling makes it harder to fight deportations by requiring individual challenges rather than class action. Immigrant advocates also fear that Texas will be a less friendly venue than Washington, since at least one federal judge in Texas has previously agreed with the “invader” classification. But the opportunity for due process still exists, and Texas courts are not uniformly anti-migrant; a federal district court in Texas has already temporarily blocked the deportation of more migrants under the Alien Enemies Act.

The worst part of this case is that it’s not clear whether any of the men already deported — many of whom, independent investigations have shown, are almost certainly not gang members and were classified as such on the basis of clothing and tattoos — can be brought back any time soon, if at all. The shameful reality is that in at least some cases, the government has shipped off legal asylum-seekers to a notoriously brutal foreign prison.

But the high court unanimously upheld due process and rejected the notion in Garcia’s case that it had no obligation to bring him back. Those are wins for civil rights and the rule of law.

Opinions expressed by Cathy Young, a writer for The Bulwark, are her own.