Alito criticizes colleagues for skipping normal procedures to block deportations in ‘unprecedented’ decision

Justice Samuel Alito criticized his colleagues for bypassing established procedures to halt deportations under a wartime authority in a dissent issued late Saturday night.

Around 1 a.m. Saturday, before allowing the district or appellate court to weigh in, the Supreme Court issued an order preventing the Trump administration from using the Alien Enemies Act of 1798 to deport alleged members of the Venezuelan Tren De Aragua gang.

“In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order,” Alito wrote in a dissent joined by Justice Clarence Thomas. “I refused to join the Court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate.”

In March, District Court Judge James Boasberg in Washington, D.C. ordered the Trump administration to stop deportations under the act, even if it meant turning planes around.

The Supreme Court stepped in on April 7, tossing Boasberg’s orders in a 5-4 decision finding he did not have jurisdiction to handle a matter taking place in Texas. The order allowed the administration to move forward but stressed that detainees must be notified of their removal within “a reasonable time” that allows them to seek relief.

In a separate case filed in Texas, the American Civil Liberties Union (ACLU) requested a temporary restraining order on Friday, and District Court Judge James Wesley Hendrix indicated he would rule by Saturday. After giving Hendrix just 42 minutes to respond, the ACLU appealed to the Fifth Circuit Court of Appeals.

The Fifth Circuit released a ruling finding it lacked jurisdiction.

Alito wrote that both “the Executive and the Judiciary have an obligation to follow the law.”

“The Executive must proceed under the terms of our order in Trump v. J. G. G. […] and this Court should follow established procedures,” he wrote.

Meanwhile, Boasberg threatened the administration with criminal contempt on Wednesday for allegedly failing to follow his order when it allowed two planes to land in El Salvador.

The ACLU asked the Supreme Court in a Monday filing to offer further guidance to lower courts and grant certiorari to consider the “weighty question whether the AEA can be invoked outside of wartime against a criminal organization and for only the fourth time in U.S. history” on its merits.

“Applicants recognize that this is an extraordinary request given that the district court has not yet ruled on the merits, but believe it is appropriate in light of the government’s actions on April 18, its position that there is no remedy for wrongfully removed individuals, and the fact that the government is moving Venezuelans whom they have labeled as gang members all around the country, making it likely that habeas actions will be required in multiple districts (in addition to the six class habeas petitions already filed by counsel in this case),” the filing states.

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