Washington – The decision of the Supreme Court allowing the Trump administration to continue to expel immigrants by virtue of a 18th century law in wartime was welcomed as a victory by the federal government and those who dispute the deportations.
The High Court has left many questions about unanswered law, experts said, which explains, in part, contradictory reactions to the decision on Monday evening.
The divided court has agreed that the Trump administration can use the Act respecting extraterrestrial enemies to expel the alleged members of a foreign gang, as long as they have the right to challenge the government’s complaint.
“The critical point of this decision is that the Supreme Court said that individuals should receive regular procedure to contest their dismissal under the Act respecting extraterrestrial enemies,” wrote Lee Genernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, who directs the trial, in a statement. “It’s an important victory.”
President Trump, writing on his social media platform Truth Social, focused on the other key part of the court’s decision: “The Supreme Court has confirmed the rule of law of our nation by allowing a president, who can be, in order to be able to secure our borders and protect our families and our country, himself. A big day for justice in America! ”
The decision upsets the orders of the district court and the judges of appeal which had suspended the expulsions and declared that the administration had exceeded its power.
The court has not decided a more important question: if the use by the administration of the law on extraterrestrial enemies is constitutional.
Families of many people expelled under the law said they are not gang members. More than 100 men accused of belonging to the Venezuelan gang Tren in Aragua were sent to a maximum security prison in El Salvador.
Although the court has judged that the detainees had the right to challenge their withdrawal, the defenders of immigrants said that this is accompanied by a problem: those detained for expulsion will have to deposit individual petitions in the district where they are detained, a difficult process for a person arrested, let’s say, in California but held in Texas, far from the family and lawyers.
Immigration officials sent many detainees to Texas before their expulsion in Salvador.
On Tuesday, ACLU and other complainants filed an emergency complaint before the New York Federal Court to again interrupt the moves under the Act respecting extraterrestrial enemies for people in the court of this court.
Senator Alex Padilla (D-Calif.) And three other democratic members of the Senate and the judicial committees of the Chamber published on Tuesday a statement claiming that the decision of the Supreme Court “undoubtedly harm the people taken in this oppressive nightmare”.
“Although the court unanimously agreed that deportations without regular procedure are illegal, the reality is that the Trump administration was quickly and wrongly, and has taken the position that these wrongful deportees can be confined to foreign prisons without reparation,” the legislators wrote. “The requirement of the Court according to which challenges occur through individual habeas petitions will make people very difficult to successfully challenge their moves before they occur.”
The extraterrestrial enemies law was used for the last time during the Second World War and, according to an overview of the national archives, was employed to hold more than 31,000 people from Japan, Germany and Italy. Three times more people of Japanese origin, mainly American citizens, have taken place in incarceration camps.
Experts such as Tom Jawetz, a former main lawyer for the Department of Homeland Security under the Biden administration, are skeptical about the targeted immigrants under the law in wartime will actually have enough time to find lawyers and contest their deportations.
“Although the court has provided a kind of mixed victory, I think there are very good reasons to worry about the fact that the process granted to these people is lacking,” he said. “With an administration that shoots first and does not really ask questions, I think we will see many more errors take place through this kind of move.”
Lindsay Toczylowski, co-founder and chief executive officer of the immigrant Defenders Law Center, based in Los Angeles, represents a gay makeup artist who was looking for asylum when the Trump administration expelled it to Salvadoran prison. The officials cited his crown tattoos as proof of his member of Tren de Aragua.
Toczylowski said that examining the regular procedure required by the Supreme Court would be a disaster in practice.
“Most people forcibly sent to Salvador were not represented,” she wrote on X. Referring to their detention in Texas, she added: “Trump deliberately moved them to distant detention centers in the TX before restraint.”
Once these cases have started making their way through the judicial system and we are heading towards the Supreme Court, the public will quickly see what the court really thinks of the use of the law in wartime, said Gabriel “Jack” Chin, a professor who studies the intersection of criminal law and immigration to UC Berkeley.
“I’m not yet worried,” he said.
Jawetz said many questions were to answer by the Supreme Court, among them: what happens to those who are already expelled under the Act on Extraterrestrial Enemies? Can this war authority be invoked during periods of peace and against a non-governmental entity?
With the lifted deportation break, these questions could now make their way into the judicial system in a much more precipitated and chaotic way, said Jawetz.
In a separate decision on Monday, the Supreme Court interrupted an order from a lower court demanding that the Trump administration will return a man from Maryland that lawyers for the Trump administration admitted that they were wrongly deported to El Salvador prison.
These yields ordered by the court are somewhat rare but took place. The administration said that he had no way of bringing the man back, Kilmar Abrego Garcia, who was not expelled under the law on extraterrestrial enemies.
If the judges decide that the Trump administration cannot be required to bring Abrego Garcia to the United States, “there is a very limited hope that the courts will intervene and say that these people who have been sent to rot in the Salvado prison have a chance to get their day before the courts,” said Jawetz.
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