To hear White House deputy chief of staff Stephen Miller tell it, thanks to the Supreme Court’s decision Monday to lift Judge James Boasberg’s temporary restraining order, the Trump administration is free to start sending Venezuelans to El Salvador under the Alien Enemies Act today.
“This was a huge, I mean monumental victory for President Trump,” Miller said on Fox News after the decision. “Those monsters can now be hunted down and expelled from this country with speed, force, and efficiency.”
This is not what the Supreme Court held at all.
What the majority did say is that the proper method for challenging the government’s use of the Alien Enemies Act to deport them is through habeas corpus petition, not an Administrative Procedures Act claim, which is the law Boasberg relied on for his order.
It is well-settled law that all habeas petitions must be brought in the district court where the plaintiffs are being detained, which in this case is the Southern District of Texas. Additionally, the majority also made clear that while “judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to ‘judicial review’ as to ‘questions of interpretation and constitutionality’ of the Act.”
This means that the question of whether the Trump administration properly invoked the Alien Enemies Act without a formal declaration of war, an unprecedented step, has yet to be litigated.
Justice Brett Kavanaugh, who sided with the majority, stressed this fact in his concurrence.
NO, KILMAR ARMANDO ABREGO GARCIA WAS NOT IN THE UNITED STATES LEGALLY
“Importantly, as the Court stresses, the Court’s disagreement with the dissenters is not over whether the detainees receive judicial review of their transfers—all nine Members of the Court agree that judicial review is available,” Kavanaugh wrote. “The only question is where that judicial review should occur.”
So instead of more planes taking off from Texas destined for El Salvador, the next step is for the Southern District of Texas to hear the habeas claims of the detained Venezuelans and their challenges to the constitutionality of Trump’s use of the Alien Enemies Act. That case will most likely end up returning to the Supreme Court for a decision on the merits.