Updated at 8:44 p.m. ET on April 9, 2025
Over the course of one afternoon and evening last month, the Department of Homeland Security loaded three planes with migrants, most of them Venezuelan men whom the Trump administration had determined, on the basis of little to no evidence, to be members of the gang Tren de Aragua. The planes departed Texas and flew across the Gulf of Mexico toward Central America, even as a judge in Washington, D.C., was holding a hearing on whether the U.S. government had the legal authority to remove those men from American soil. When the detainees landed in El Salvador, they were greeted by a phalanx of armed guards and led to the country’s notorious prison, the Terrorism Confinement Center, where their heads were shaved and their hands and feet shackled. By this time, the judge had already issued a ruling barring their transfer from the United States—but it was, as Salvadoran President Nayib Bukele smirked on X, “too late.”
This sequence of events is what led to the Supreme Court’s emergency ruling late Monday night in Trump v. J.G.G., which held that the Trump administration cannot use the Alien Enemies Act to unilaterally remove supposed Venezuelan Tren de Aragua members from the U.S. without any legal process, yet also narrowed the path by which those detainees can contest their removal. If you read the majority’s opinion alone, though, you would have no idea that roughly 260 people were currently incarcerated in a Salvadoran prison, many of them having been shipped there in apparent defiance of a court order. The decision—an unsigned opinion from the Court’s conservative bloc, minus Amy Coney Barrett—is strangely antiseptic. Yes, it marks a major loss for Donald Trump in its refusal to allow him to snatch people away in the middle of the night. But it also exhibits a disturbing willingness to ignore the brute facts of Trump’s actions and their human cost in favor of remaining within the more comfortable world of high-minded detachment.
Trump’s invocation of the Alien Enemies Act against Tren de Aragua was dubious from the start. The statute, which dates from 1798, provides the president with the authority to detain and remove “all natives, citizens, denizens, or subjects” of a “hostile nation or government” that has declared war on the United States or is engaged in an “invasion or predatory incursion.” Tren de Aragua is not—despite the White House’s claims—a government, there is no invasion of the United States, and the administration has provided scant evidence that any of the men identified as Tren de Aragua members have any affiliation with the gang. In fact, reporting suggests that the overwhelming majority of the people now incarcerated in El Salvador have no criminal record whatsoever. Still, the administration claimed the authority under the Alien Enemies Act to remove these people from the country and render them to a foreign prison, with no court review.
This argument is appalling. And the Supreme Court rejected it, holding that “detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal.” This is a significant loss for the Trump administration, and one that even the most right-wing justices signed on to.
The catch is how that challenge to removal must be brought. The five-justice majority ruled that detainees must seek review of their case by filing for a writ of habeas corpus, the constitutional right that ensures a person’s ability to seek review of their imprisonment in court. For this reason, the Court vacated the temporary restraining orders that a district court had issued blocking the removal of any Venezuelans under the Alien Enemies Act, because the plaintiffs in J.G.G., represented by the ACLU, had sued under a different legal mechanism. Still, detainees currently in the United States will be able to seek judicial review before their removal. It’s through this process that a substantive challenge to the legality of the administration’s invocation of the Alien Enemies Act will ultimately be brought.
There are several problems with this. Habeas is a more restrictive route through which to litigate these cases: Although the ACLU had originally been able to bring suit on behalf of everyone who might have been removed, habeas likely requires detainees to sue individually or, at most, district by district. (Today, two separate judges in New York and Texas responded to new habeas petitions by issuing orders blocking the government from removing anyone in specific regions or facilities, but these orders are limited to Venezuelans in those particular places, rather than providing nationwide protections.) It will also place these cases in front of potentially hostile judges in the more conservative U.S. Court of Appeals for the Fifth Circuit, where many detainees are housed. And it remains deeply unclear just how much of an “opportunity to challenge” their removal these people will get.
Possibly the most disturbing aspect of this ruling, though, is that it remains entirely uncertain what the people stuck in Salvadoran prison are supposed to do now. This may become clearer once the Court rules in a separate case, Abrego Garcia v. Noem, concerning a man who was shipped to the Salvadoran prison by mistake and whom the administration is declaring it has no ability or obligation to get back. For now, though, the majority ruling does not even mention these prisoners or bother to note that the Trump administration seemingly ignored a court order in its rush to incarcerate them—an action that, as Justice Sonia Sotomayor wrote in dissent, “poses an extraordinary threat to the rule of law.” Justice Ketanji Brown Jackson, writing separately, accused the majority of not being “willing to face” the consequences of its ruling.
Strikingly, Jackson compared the Court’s decision in J.G.G. to Korematsu, in which the Court upheld the World War II internment of Japanese Americans. Korematsu is one of the most infamous Supreme Court rulings in the history of the country, and judges do not cite it lightly—but by my count, this is at least the third time in recent years that a liberal justice has done so in dissent. In the travel-ban case, Sotomayor pointed to Korematsu to decry the majority’s willingness to turn “a blind eye to the pain and suffering” caused by the ban. She cited it again in her dissent to the Court’s ruling establishing broad presidential immunity from criminal prosecution, warning of the risk of enabling a president to rampage without any expectation of accountability.
In both those cases, the conservative majority operated similarly to how it behaved in J.G.G.—airily ignoring the danger posed by Trump’s actions to the republic and the people he has harmed. Instead, it prefers to inhabit a land of technicalities and abstractions. Ruling in the immunity case, Chief Justice John Roberts seemed to serenely arrogate to the Court an immense power to determine whether the president might ever face criminal consequence without worrying whether the emboldening of a rampaging executive might at some point place the authority of the judiciary in danger.
Some commentators, reviewing the Court’s approach to J.G.G. and other recent cases, have wondered whether the majority chose this technical approach as a way of dodging direct confrontation with an out-of-control president who might choose to outright defy its orders. But this is not a White House in the habit of backing down. Sooner or later, regardless of whether the Court wants to acknowledge it, the bill is going to come due.
This article originally implied that all 260 people sent to El Salvador were sent in defiance of a court order.
The post The Supreme Court Can’t Dodge Trump Forever appeared first on The Atlantic.
