It’s not about immigration. It’s about upholding the Constitution.

And a majority of the Supreme Court seems to get it—finally.

By Mimi Rocah

If you did not wake up early Saturday morning (any time after 1 a.m.), look at breaking news on your phone and say “wow!”, allow me to explain why so many people (me included) did. In short, the Supreme Court issued a highly unusual, late-night order that showed a newfound (and completely warranted) aggressiveness in requiring the Trump administration to comply with judicial orders and a previously unseen skepticism of the administration’s willingness to act in good faith.

To more fully understand what happened and what it means, let’s go all the way back to April 7, when SCOTUS issued a per curiam opinion in J.G.G. v Trump (in the original Washington, D.C., case before Judge James Boasberg), in which a 5-4 majority held that challenges to removal under the wartime Aliens Enemy Act (AEA) must be brought through habeas petitions where detainees are being held, not through Administrative Procedure Act claims in the D.C. district court (like J.G.G.). The White House crowed about the ruling, which Homeland Security adviser Stephen Miller interpreted to mean “[t]hose monsters (alleged gang members) can now be hunted down and expelled from this country with speed, force, and efficiency” and the press secretary claimed was a clear green light to “keep removing ‘foreign terrorist invaders’ using the AEA.”

What the administration ignored, however, was an equally important part of the April 7 decision, in which all nine justices (!) unanimously held that “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act” and the notice has to be provided in a fashion that makes it possible for detainees to go to court to challenge their removal before they are deported. The real issue on which the justices disagreed is in which court that challenge should be resolved. OK, so maybe not such a decisive victory for the Trump administration’s fast and furious deportation plan.

But, mistakenly, or purposefully (I tend to think the latter), the administration ignored that second part of the ruling about an opportunity to be heard, i.e. the due process thing we have all been talking so much about, to its detriment. Through a series of complicated, confusing maneuvers, lawyers from the American Civil Liberties Union (ACLU) learned that Immigration and Customs Enforcement might be transferring people out of the Southern District of Texas, where a judge had enjoined further deportations under the AEA to El Salvador, into the Northern District of Texas, where no such order had been entered. The lawyers were concerned that detainees were being held in or moved to the Bluebonnet Detention Center in the Northern District of Texas in preparation for deportation flights to El Salvador. On top of moving human beings to get around a court injunction, the administration provided what I would call very skimpy notice to those they were about to deport, likely not in compliance with SCOTUS’s April 7 order described above.

Two other brief pieces of background before we get to the “wow” middle-of-the-night opinion: In at least two different courtrooms, in Washington and the Northern District of Texas, the administration gave equivocal at best answers on Friday as to whether the individuals would be deported before the various court challenges and habeas claims had been resolved under the AEA. In Washington (where the judge seemed very skeptical), the Justice Department attorney tap-danced his answer saying, "I've spoken with DHS, they are not aware of any current plans for flights tomorrow, but I have also been told to say that they reserve the right to remove people tomorrow.” In Texas (where the judge accepted these representations as not indicating imminence), the DOJ attorney stated, “the government does not presently expect to remove A.A.R.P. or W.M.M. (the named plaintiffs) under the [AEA] until after the pending habeas petition is resolved” and that “[i]f that changes, we will update the Court.”

None of this inspires confidence in anyone aware of this administration’s track record of playing fast and loose with Supreme Court and lower court rulings, particularly in the area of deportations. Specifically, the administration, together with the Salvadoran dictator, have taken the position that a man who was admittedly mistakenly deported, Kilmar Abrego García, cannot be returned to the United States no matter what anyone says. Even very conservative 4th Circuit Judge Harvie Wilkinson has called the administration’s handling of the Garcia case “shocking … to the intuitive sense of liberty.”

All of this led up to the Supreme Court stepping in with a middle-of-the-night ruling after ACLU lawyers raced to the court for emergency protection for their clients. At least for now, their clients cannot be deported, unless the Trump government wants to directly violate the Supreme Court’s order. Do I think that will happen? Not quite yet. The court has not ruled on the actual substantive issue—whether or not the administration can use the wartime AEA to deport large numbers of people. The administration might not want to (further) alienate SCOTUS before it rules on that.

Now what? The government has already filed a brief with the Supreme Court. The ACLU will respond, and the procedural wrangling might pause for now. We might (or might not) get to a ruling on the merits soon. For more on this (and everything related to this), see our friend Steve Vladeck’s most recent note. But some things seem clear: As Vladeck and others have pointed out, the Supreme Court’s urgent, fast ruling putting a full stop on the government’s ability to keep moving at the breakneck speed to which they feel entitled is remarkable. It says as much as any piece of paper can about the majority of the court's view that this administration is moving too quickly and acting too cute about following court rulings. It also shows that, as many of us have been saying, nothing the administration does can be viewed in isolation. At least for now, SCOTUS seems to get that. The administration’s actions (or lack of actions) in related and unrelated deportation cases, plus their comments about defying court orders and the obnoxious “oops too late” attitude about bringing García back, are catching up to it and, at a minimum, eroding the presumption of good faith that DOJ and the government are usually accorded in any courtroom.

Mimi Rocah was the district attorney of Westchester County, New York, from 2021 to 2024 and was a federal prosecutor from 2001 to 2017.

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