If there has been a common theme in the federal courts’ response to the fallout from President Trump’s aggressive deportation policies, it is that the White House cannot rush headlong into expelling people by sidestepping the fundamental principle of due process.
In case after case, a legal bottom line is emerging: Immigrants should at least be given the opportunity to challenge their deportations, especially as Trump officials have claimed novel and extraordinary powers to remove them.
The latest and clearest expression of that view came on Friday evening, when the Supreme Court chided the Trump administration for seeking to provide only a day’s warning to a group of Venezuelan immigrants in Texas it had been trying to deport under the expansive powers of an 18th-century wartime law.
“Notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal,” the justices wrote, “surely does not pass muster.”
While many questions remain to be answered about Mr. Trump’s deportation plans, many legal scholars have hailed courts’ support of due process. At the same time, they have also expressed concern that such support was needed in the first place.
“It’s great that courts are standing up for one of the most basic principles that underlie our constitutional order — that ‘persons’ (not ‘citizens’) are entitled to due process before being deprived of life, liberty, or property,” Michael Klarman, a professor at Harvard Law School, wrote in an email. “It would be even better if the administration would simply cease violating such principles.”
The Supreme Court’s decision comes as Mr. Trump and some of his top aides have openly flouted the idea of providing due process to immigrants awaiting deportation, a position that the Constitution appears to lay out clearly and that the justices themselves have repeatedly upheld in previous decisions.
“We have millions of people that have come in here illegally, and we can’t have a trial for every single person,” Mr. Trump said this month on CBS News.
Last week, Stephen Miller, the president’s chief domestic policy adviser, went further, saying that the administration was considering suspending the writ of habeas corpus — one of the Constitution’s most important protections against unlawful detention.
While the White House probably lacks the power to suspend the writ itself, doing so would gut the ability of immigrants subject to removal under the Alien Enemies Act to contest their deportations, among other things. Under a previous ruling by the Supreme Court on Mr. Trump’s use of the wartime law, the justices held that immigrants challenging their removal under the act must do so through the habeas corpus process.
People in custody can invoke habeus corpus — a Latin term that means “show me the body” — as a way to get in front of a judge to determine if their detention is unlawful.
The cases concerning the Alien Enemies Act, which was passed in 1798 and was last invoked to intern and repatriate Japanese, Italian and German nationals during and after World War II, have arguably gotten more attention than many other deportation cases.
There are about 10 such cases moving through courts across the country. Some of the judges hearing the cases have ruled that Mr. Trump used the law illegally. But almost all of them — including one who said the president was using it lawfully — have agreed on one thing: that immigrants must have the ability to contest their deportations before they are removed.
Those cases are not the only ones in which federal courts have stepped in to insist that immigrants receive due process.
On Friday, around the same time that the Supreme Court issued its decision in the Texas case, a federal appeals court in Boston said that the administration had to keep giving immigrants a 15-day warning period before deporting them to countries other than their own if they had reason to fear being sent there.
That decision came in a case where immigration lawyers have accused Trump officials of sending a handful of men from the U.S. naval base in Guantánamo Bay, Cuba to El Salvador without sufficient warning. In a related development, the district judge overseeing the case ruled this month that plans by the administration to deport a group of immigrants to Libya would violate his order requiring due process before people are sent to countries not their own where they might face persecution.
In its ruling on Friday, the Supreme Court noted that the issue of due process was “particularly weighty” for immigrants confronting deportation because the Trump administration has consistently refused to bring back people who were sent out of the country, even if their removals were in error.
Moreover, the justices noted, those who have been removed to El Salvador could face “indefinite detention” there.
“The justices are well aware that the administration is manipulating the process as much as possible to avoid judicial review, and the court is going to put a stop to it,” said Amanda Frost, a law professor at the University of Virginia.
The justices focused in particular on the case of Kilmar Armando Abrego Garcia, a Maryland man who was flown to El Salvador in March even though a previous court order had expressly prohibited him from being sent there.
Mr. Abrego Garcia is still in El Salvador despite the fact that the justices ordered the White House more than a month ago to “facilitate” his release from Salvadoran custody. As part of their decision, the justices told Trump officials that they had to provide Mr. Abrego Garcia with the same due process he would have been afforded had he not been improperly deported.
Their insistence on due process for Mr. Abrego Garcia has been echoed both by Judge Paula Xinis, the trial judge hearing the case, and by Judge J. Harvie Wilkinson, a prominent conservative appeals court judge who issued a scathing ruling on it in April.
“It is difficult in some cases to get to the very heart of the matter, but in this case, it is not hard at all,” Judge Wilkinson wrote. “The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.”
The Supreme Court has not laid out exactly what due process might look like for Mr. Abrego Garcia and whether giving him his full slate of rights would require bringing him back to the United States.
The case is now entangled in a contentious effort by Judge Xinis to determine exactly what the White House has and has not done to comply with the instructions from the justices. But it is almost certain to return to the Supreme Court, which could at that point provide a more detailed road map in the case.
The Supreme Court has taken a similar approach in the Texas case involving the Alien Enemies Act. As part of its ruling on Friday, it sent the matter back to the U.S. Court of Appeals for the Fifth Circuit with instructions to hash out how much — and what sort of — notice immigrants should be given before being deported under the law.
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.
Abbie VanSickle covers the United States Supreme Court for The Times. She is a lawyer and has an extensive background in investigative reporting.
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