The Supreme Court issued a pair of rulings over the past month that suggest the justices are keeping a close eye on procedure in immigration-related cases, even as key questions of immigration law remain unanswered.
On Friday, the Supreme Court ruled 7-2 to pause the deportation of a group of Venezuelan nationals under the Alien Enemies Act in Texas and sent the case to a federal appeals court to review the merits of the legal challenge.
That loss for the Trump administration at the country’s highest court was followed up by a win on Monday, when the justices ruled 8-1 to pause a federal district court’s ruling blocking the Trump administration from revoking the temporary protected status afforded to nearly 350,000 Venezuelan migrants living in the United States.
While much uncertainty still surrounds how the justices will rule on the Trump administration’s efforts to find legal backing for its deportations, both orders by the high court appear to show a common thread.
SUPREME COURT PAUSES DEPORTATIONS UNDER ALIEN ENEMIES ACT IN TEXAS
John Shu, a constitutional law scholar and expert who served in both Bush administrations, believes that the Supreme Court is telling litigants to “follow the existing rules” with its pair of orders on immigration.
“These rulings show that the court at this point was concerned about the cases’ procedural aspects and not the substantive legal or policy issues,” Shu told the Washington Examiner.
“For example, the controlling statute regarding temporary protected status says no judicial review, which gives broad discretion to the executive branch, and thus is why the court lifted the stay,” Shu said of the Supreme Court’s Monday order on TPS. The statute used to extend TPS to various populations of migrants gives broad authority to the executive branch to determine when and how to apply the status.
Shu said the Supreme Court’s Friday ruling on the Alien Enemies Act shows that it was concerned about the government giving sufficient notice to migrants it intended to deport and following “all the other relevant procedural aspects.”
Neither the Alien Enemies Act order nor the TPS order from the Supreme Court addressed the merits of the respective cases, both of which concern the Trump administration’s use of executive power to remove migrants.
“For example, the court’s rulings from this past weekend aren’t about whether the Trump administration properly applied or defined the Alien Enemies Act,” Shu added. “Instead, at this stage, the court was more concerned about whether the government followed the proper procedures.”
The cases, despite appearing different in how they allow the Trump administration to proceed, do not necessarily represent a “mixed approach” by the high court, according to Case Western Reserve University law professor Jonathan Adler.
“I think they show that a majority of the court is considering each case on the legal merits and recognizing that there are some things the Trump administration has the authority to do and other things it does not,” Adler told the Washington Examiner.
SUPREME COURT ALLOWS TRUMP TO END PROTECTIVE STATUS FOR VENEZUELAN MIGRANTS
While both the Alien Enemies Act and Venezuelan TPS litigation could make their way back to the high court now that the justices have sent them back down for further proceedings, the Supreme Court is also considering a plea from the Trump administration to allow it to end a Biden-era parole program for 532,000 migrants from Cuba, Nicaragua, Haiti, and Venezuela.
The Trump administration urged the justices to consider their application for relief earlier this month, possibly setting up another Supreme Court action in a case relating to the president’s crackdown on immigration.