Thomas and Alito can’t find their copies of the Constitution

In yet another serious blow to Donald Trump’s all-out assault on the rule of law, the Supreme Court ruled yesterday, 7-2, that the administration cannot deport immigrants using the Alien Enemies Act unless they are afforded due process of law. The decision is not the final ruling in the case, A.A.R.P. v. Trump, which challenges the Constitutionality of using the Alien Enemies Act to deport migrants. The decision mandated that Trump cannot deport migrants who are in the U.S. illegally merely by alleging without evidence that they are gang members, and they cannot use the Alien Enemies Act unless the court rules that it is constitutional. Which unlikely, given that the Alien Enemies Act was written to apply during times of war when the nation is under invasion by a foreign country.

The Supreme Court took the unusual step of noting that it was granting the injunction against the deportations because it recognized that the administration had previously made use of the Alien Enemies Act to wrongfully deport another individual without due process and then argued in court that “it is unable to provide for the return of an individual deported in error to a prison in El Salvador.”

The court took the opportunity of this interim decision to tell the Fifth Circuit Court of Appeals, from which the case was appealed, that notifying the detainees less than 24 hours before they were to be removed from the country, without giving them any instructions about how they could exercise their right to a hearing before removal, “surely does not pass muster.”

Most of the deportation cases are coming out of the Fifth Circuit because the Trump administration has located many of the people it wants to deport in either Louisiana or Texas, two states within the Fifth Circuit’s jurisdiction, and recognizes that it by far the most conservative Court of Appeals in the country and most likely to rubber-stamp the administration’s efforts to deport people. The language in the Supreme Court opinion yesterday was a direct instruction to the Fifth Circuit that they are not to root around in legal minutia looking for a way around the due process clause of the Constitution, and any ruling by the Fifth Circuit that does not uphold due process will be overturned again by the Supreme Court. The court even went so far as to remind the Fifth Circuit, “We have long held that ‘no person shall be’ removed from the United States ‘without opportunity, at some time, to be heard.’” The word “person” as opposed to “citizen” was emphasized in that sentence, and the court went even further and used the word “alien” – from the “Alien Enemies Act” -- to remind the Fifth Circuit that “The Fifth Amendment entitles aliens to due process of law in the context of removal proceedings.’”

In a direct slap at the Trump administration, the Supreme Court made a veiled reference to the case of Abrego Garcia by including this further reminder of the purpose of the Due Process clauses of the 14^th and 5^th Amendments: “‘Procedural due process rules are meant to protect’ against ‘the mistaken or unjustified deprivation of life, liberty, or property.’” The word “mistaken” practically leaps from the page, since the Trump DOJ has admitted under oath in court that Garcia was “mistakenly” removed to El Salvador.

The decision itself is unsigned, but a dissent was signed by the two justices on the court, Clarence Thomas and Samuel Alito, who have apparently forgotten that they were appointed to rule on whether laws and actions by the government are constitutional, not to uphold whatever Donald Trump wants to do. Trump did himself no favors with the other seven justices of the court who clearly know their duty, when he wrote on Truth Social last night, after the decision was filed, “THE SUPREME COURT WON’T ALLOW US TO GET CRIMINALS OUT OF OUR COUNTRY!”

There was of course no evidence presented by Donald Trump’s administration that the Venezuelans they want to deport are criminals.

Trump followed up his initial Truth Social post with, “The Supreme Court of the United States is not allowing me to do what I was elected to do,” as if his election entitles him to violate Constitutional rights at will.

Legal commentators over the past few weeks have held that Trump and the Supreme Court are “headed for a collision.” The Supreme Court, in this decision, is reminding Donald Trump that his upcoming collision will be with the Constitution itself, and the resulting damage will be to him, not to either the court or our founding document.