'Devastating': Sotomayor slams Trump as 'lawless' for using 1798 law to deport immigrants
Image via Creative Commons.
Image via Creative Commons.
April 08, 2025
ALTERNET
President Donald Trump's administration was just given a green light by the 6-3 conservative-dominated Supreme Court of the United States (SCOTUS) to continue deporting immigrants without due process under a controversial centuries-old law. But justices' views varied widely on the issue.
The decision — which was handed down on party lines (and with Trump appointee Amy Coney Barrett partially dissenting) — allows for Trump to continue deportations under the Alien Enemies Act of 1798 (AEA) while litigation plays out in the lower courts. The Supreme Court's ruling overturns rulings handed down by lower court judges that blocked the administration from deporting immigrants without first giving them a hearing in court as the AEA allows. The AEA has only been invoked three times in history, and hadn't been used since World War II.
The administration argued that it had the right under the AEA to deport three planeloads full of detainees to the maximum security CECOT prison in El Salvador, alleging that those being deported were members of violent gangs like Tren de Aragua and MS-13. But the government's lawyers have already admitted that at least one man was deported as the result of an administrative error, and that seven women and one man eventually had to be sent back to the United States who were originally on the flights to El Salvador. Chief Justice John Roberts recently sided with the administration in halting the deadline to bring back the man who had been wrongfully deported.
Slate legal writer Mark Joseph Stern observed that two Democratic-appointed justices issued blistering dissents in condemning the ruling. Sonia Sotomayor (an appointee of former President Barack Obama) lamented the new legal precedent the Court created for deportations with its ruling, darkly predicting that administrations now had carte blanche to send deportees to foreign prisons without any due process hearings.
"What if the Government later determines that it sent one of these detainees to CECOT in error? Or a court eventually decides that the President lacked authority under the Alien Enemies Act to declare that Tren de Aragua is perpetrating or attempting an 'invasion' against the territory of the United States?" Sotomayor wrote. "The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise."
Additionally, Justice Ketanji Brown Jackson (an appointee of former President Joe Biden) alleged in her own separate dissent that the Roberts Court was attempting to pass unpopular decisions under the cover of the Court's "emergency docket," in which it rules on issues being litigated in lower courts without parties first submitting official writ of certiorari petitions asking the Court to intervene. She also notably cited the maligned Korematsu v. United States decision, in which the Supreme Court defended the Franklin Delano Roosevelt administration's detainment of Japanese Americans during World War II. Korematsu is widely regarded as one of the Court's worst decisions in U.S. history.
"I lament that the Court appears to have embarked on a new era of procedural variability, and that it has done so in such a casual, inequitable, and, in my view, inappropriate manner," Jackson wrote. "At least when the Court went off base in the past, it left a record so posterity could see how it went wrong ... With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it."
President Donald Trump's administration was just given a green light by the 6-3 conservative-dominated Supreme Court of the United States (SCOTUS) to continue deporting immigrants without due process under a controversial centuries-old law. But justices' views varied widely on the issue.
The decision — which was handed down on party lines (and with Trump appointee Amy Coney Barrett partially dissenting) — allows for Trump to continue deportations under the Alien Enemies Act of 1798 (AEA) while litigation plays out in the lower courts. The Supreme Court's ruling overturns rulings handed down by lower court judges that blocked the administration from deporting immigrants without first giving them a hearing in court as the AEA allows. The AEA has only been invoked three times in history, and hadn't been used since World War II.
The administration argued that it had the right under the AEA to deport three planeloads full of detainees to the maximum security CECOT prison in El Salvador, alleging that those being deported were members of violent gangs like Tren de Aragua and MS-13. But the government's lawyers have already admitted that at least one man was deported as the result of an administrative error, and that seven women and one man eventually had to be sent back to the United States who were originally on the flights to El Salvador. Chief Justice John Roberts recently sided with the administration in halting the deadline to bring back the man who had been wrongfully deported.
Slate legal writer Mark Joseph Stern observed that two Democratic-appointed justices issued blistering dissents in condemning the ruling. Sonia Sotomayor (an appointee of former President Barack Obama) lamented the new legal precedent the Court created for deportations with its ruling, darkly predicting that administrations now had carte blanche to send deportees to foreign prisons without any due process hearings.
"What if the Government later determines that it sent one of these detainees to CECOT in error? Or a court eventually decides that the President lacked authority under the Alien Enemies Act to declare that Tren de Aragua is perpetrating or attempting an 'invasion' against the territory of the United States?" Sotomayor wrote. "The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise."
Additionally, Justice Ketanji Brown Jackson (an appointee of former President Joe Biden) alleged in her own separate dissent that the Roberts Court was attempting to pass unpopular decisions under the cover of the Court's "emergency docket," in which it rules on issues being litigated in lower courts without parties first submitting official writ of certiorari petitions asking the Court to intervene. She also notably cited the maligned Korematsu v. United States decision, in which the Supreme Court defended the Franklin Delano Roosevelt administration's detainment of Japanese Americans during World War II. Korematsu is widely regarded as one of the Court's worst decisions in U.S. history.
"I lament that the Court appears to have embarked on a new era of procedural variability, and that it has done so in such a casual, inequitable, and, in my view, inappropriate manner," Jackson wrote. "At least when the Court went off base in the past, it left a record so posterity could see how it went wrong ... With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it."
Daniel Hampton
April 7, 2025
RAW STORY
Prison guards serarch inmates during a media tour at the Terrorism Confinement Center (CECOT) prison, in Tecoluca, El Salvador April 4, 2025. REUTERS/Jose Cabezas
The Wall Street Journal's conservative editorial board laid into the Trump administration again Monday night as it actively fights against efforts to return a wrongfully deported man from a notoriously brutal Salvadoran prison to the United States.
Kilmar Abrego Garcia of Maryland was mistakenly sent to a mega-prison last month, and the Trump administration acknowledged his deportation was due to an "administrative error."
Garcia was deported on March 15, even though an immigration judge in 2019 barred his removal due to risks of persecution and torture by gangs. But the Trump administration invoked the Alien Enemies Act of 1789 to mass deport alleged gang members, including Garcia, even though no evidence has emerged tying him to criminal activities.
The administration has said Garcia is no longer under the United States' jurisdiction since he is detained by Salvadoran authorities.
And the Journal editors weren't having it, writing that the Trump Administration is fighting to "keep a man falsely expelled in a Salvadoran hellhole."
"The Trump Administration’s never-back-down style is becoming a governance problem with overtones of cruelty," the editorial said.
The administration said in its filing that the Constitution "charges the President, not federal district courts, with the conduct of foreign diplomacy and protecting the Nation against foreign terrorists." Solicitor General John Sauer, meanwhile, said the judge's ruling dictated to the U.S. “that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight." That could, said Sauer, set a terrible precedent of “district court diplomacy.”
"Not quite," the Journal retorted, pointing to another judge's rationale for denying the Trump administration's demand for a pause, which noted the facts of the case "present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done.”
That, the judge said, is a path to “perfect lawlessness.”
"The Trump Administration hates to admit an error, but its obstinance here serves no purpose. Mistakes happen. Why not ask the Salvadoran government to send Mr. Abrego Garcia back to unite with his family?" the Journal concluded.
Prison guards serarch inmates during a media tour at the Terrorism Confinement Center (CECOT) prison, in Tecoluca, El Salvador April 4, 2025. REUTERS/Jose Cabezas
The Wall Street Journal's conservative editorial board laid into the Trump administration again Monday night as it actively fights against efforts to return a wrongfully deported man from a notoriously brutal Salvadoran prison to the United States.
Kilmar Abrego Garcia of Maryland was mistakenly sent to a mega-prison last month, and the Trump administration acknowledged his deportation was due to an "administrative error."
Garcia was deported on March 15, even though an immigration judge in 2019 barred his removal due to risks of persecution and torture by gangs. But the Trump administration invoked the Alien Enemies Act of 1789 to mass deport alleged gang members, including Garcia, even though no evidence has emerged tying him to criminal activities.
The administration has said Garcia is no longer under the United States' jurisdiction since he is detained by Salvadoran authorities.
And the Journal editors weren't having it, writing that the Trump Administration is fighting to "keep a man falsely expelled in a Salvadoran hellhole."
"The Trump Administration’s never-back-down style is becoming a governance problem with overtones of cruelty," the editorial said.
The administration said in its filing that the Constitution "charges the President, not federal district courts, with the conduct of foreign diplomacy and protecting the Nation against foreign terrorists." Solicitor General John Sauer, meanwhile, said the judge's ruling dictated to the U.S. “that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight." That could, said Sauer, set a terrible precedent of “district court diplomacy.”
"Not quite," the Journal retorted, pointing to another judge's rationale for denying the Trump administration's demand for a pause, which noted the facts of the case "present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done.”
That, the judge said, is a path to “perfect lawlessness.”
"The Trump Administration hates to admit an error, but its obstinance here serves no purpose. Mistakes happen. Why not ask the Salvadoran government to send Mr. Abrego Garcia back to unite with his family?" the Journal concluded.
Supreme Court hands Trump win in effort to deport migrants using controversial 1700s law
Daniel Hampton
April 7, 2025
Daniel Hampton
April 7, 2025
ALTERNET
The Supreme Court handed President Donald Trump a win Monday afternoon as it allowed his administration to — for now — use a 1700s-era law to deport migrants it alleges are gang members.
The court said Trump's administration can invoke the Alien Enemies Act of 1798, which was part of the Alien and Sedition Acts passed by Congress amid heightened tensions with France. The law gives the president wartime powers to detain, relocate, or deport non-citizens from enemy nations.
Trump invoked the act last month to deport migrants that authorities said were members of the violent Venezuelan gang Tren de Aragua. This marked the act's first use since World War II.
Critics have said the deportations were illegal because it the act has traditionally been restricted to wartime scenarios or invasions by foreign governments.
But in an unsigned decision in the case, the Supreme Court allowed in a 5-4 ruling that Trump to invoke the law to expedite deportations while litigation over its use proceeds through lower courts. The court said deported migrants now must be notified they are subject to the act and be given a chance to have their deportation reviewed.
“AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs,” the court wrote, according to NBC News.
The ruling lifted an order last month that gained national headlines handed down by Judge James Boasberg in Washington, D.C., who blocked the administration from carrying out deportations using the law. Boasberg has a hearing planned Tuesday on whether to impose a longer-term preliminary injunction.
Justice Ketanji Brown Jackson spoke out against the ruling in her dissent.
“I lament that the Court appears to have embarked on a new era of procedural variability, and that it has done so in such a casual, inequitable, and, in my view, inappropriate manner,” Jackson wrote.
The Supreme Court handed President Donald Trump a win Monday afternoon as it allowed his administration to — for now — use a 1700s-era law to deport migrants it alleges are gang members.
The court said Trump's administration can invoke the Alien Enemies Act of 1798, which was part of the Alien and Sedition Acts passed by Congress amid heightened tensions with France. The law gives the president wartime powers to detain, relocate, or deport non-citizens from enemy nations.
Trump invoked the act last month to deport migrants that authorities said were members of the violent Venezuelan gang Tren de Aragua. This marked the act's first use since World War II.
Critics have said the deportations were illegal because it the act has traditionally been restricted to wartime scenarios or invasions by foreign governments.
But in an unsigned decision in the case, the Supreme Court allowed in a 5-4 ruling that Trump to invoke the law to expedite deportations while litigation over its use proceeds through lower courts. The court said deported migrants now must be notified they are subject to the act and be given a chance to have their deportation reviewed.
“AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs,” the court wrote, according to NBC News.
The ruling lifted an order last month that gained national headlines handed down by Judge James Boasberg in Washington, D.C., who blocked the administration from carrying out deportations using the law. Boasberg has a hearing planned Tuesday on whether to impose a longer-term preliminary injunction.
Justice Ketanji Brown Jackson spoke out against the ruling in her dissent.
“I lament that the Court appears to have embarked on a new era of procedural variability, and that it has done so in such a casual, inequitable, and, in my view, inappropriate manner,” Jackson wrote.
Trump Backs 'Blatantly Unconstitutional' Proposal to Send US Citizen Inmates to El Salvador Prisons
"You may not deport a U.S. citizen, period," said one legal expert.
People who were sent to El Salvador by the Trump administration arrive in San Salvador on March 31, 2025.
(Photo: El Salvador Press Presidency Office/Anadolu via Getty Images)
Julia Conley
Apr 07, 2025
COMMON DREAMS
With a deadline looming for the Trump administration to return a Maryland resident to the U.S. after expelling him along with hundreds of other people to an El Salvador detention center under a shadowy deal with the Central American country, U.S. President Donald Trump on Sunday stunned observers by expressing a desire to send U.S. citizens into El Salvador's prison system.
In a press briefing aboard Air Force One Sunday evening, Trump was asked by a reporter about an offer made by Salvadoran President Nayib Bukele to accept prisoners sent by the U.S. from its federal prison population.
"I love that," Trump said. "If we could take some of our 20-time wise guys that push people into subways and hit people over the back of the head and purposely run people over in cars, if he would take them, I would be honored to give them."
"I don't know what the law says on that," he added. "I have suggested that, why should we stop at people who cross the border illegally?"
Podcaster and former Obama administration staffer Jon Favreau said Trump's remarks could be summed up as: "He wants to send American citizens to a foreign gulag."
Trump has invoked the Alien Enemies Act of 1798, which permits the U.S. government to detain and deport noncitizens during wartime, to expel 238 Venezuelan migrants to El Salvador, where they are being held in the country's Terrorism Confinement Center (CECOT). About two dozen people who were originally from El Salvador were also sent to the prison, including Kilmar Abrego Garcia—a Maryland man who had legal protected status, was not convicted of a crime, and had previously received a court order barring the U.S. from deporting him to his home country for fear of persecution and torture.
Trump said several times in his comments Sunday that he was unsure of the legality of sending U.S. federal prison inmates to a foreign prison system.
In February, after Bukele first offered to imprison U.S. citizens, Lee Gelernt of the ACLU told NPR that the idea was a "non-starter."
"You may not deport a U.S. citizen, period," Gelernt, deputy director of the group's Immigrants' Rights Project, told the outlet. "The courts have not allowed that, and they would not allow it... It would be blatantly unconstitutional to deport a U.S. citizen."
Secretary of State Marco Rubio also touted Bukele's offer at the time, calling it "an extraordinary gesture never before extended by any country."
Trump's remarks on potentially expanding his deal with the Salvadoran president to include U.S. citizens followed U.S. District Judge Paula Xinis's order mandating the return of Abrego Garcia to the U.S. with a deadline of 11:59 pm Monday.
Xinis on Sunday rejected the administration's request to lift the order, saying Abrego Garcia's expulsion had been "wholly lawless" and that the "risk of harm shocks the conscience."
On Monday, the administration asked the U.S. Supreme Court to block Xinis' order, saying her demand that the White House adhere to the Constitution was "district-court diplomacy" and accusing the judge of trying to "seize control over foreign relations."
The administration has attacked the district court in Washington, D.C. in recent days over the order, with homeland security adviser Stephen Miller calling on Congress last week to "step up" and abolish the panel by refusing to fund it.
The White House has called Abrego Garcia's expulsion and imprisonment in El Salvador an "administrative error" and claimed the Maryland father is no longer under U.S. jurisdiction, so the administration cannot order him to be returned.
"We suggest the judge contact President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador," said White House Press Secretary Karoline Leavitt last week.
Washington Monthly contributor David Atkins said that under the same logic, "there is also nothing that prevents them from shipping American citizens to a gulag in El Salvador and saying, 'Nothing we can do.'"
"You may not deport a U.S. citizen, period," said one legal expert.
People who were sent to El Salvador by the Trump administration arrive in San Salvador on March 31, 2025.
(Photo: El Salvador Press Presidency Office/Anadolu via Getty Images)
Julia Conley
Apr 07, 2025
COMMON DREAMS
With a deadline looming for the Trump administration to return a Maryland resident to the U.S. after expelling him along with hundreds of other people to an El Salvador detention center under a shadowy deal with the Central American country, U.S. President Donald Trump on Sunday stunned observers by expressing a desire to send U.S. citizens into El Salvador's prison system.
In a press briefing aboard Air Force One Sunday evening, Trump was asked by a reporter about an offer made by Salvadoran President Nayib Bukele to accept prisoners sent by the U.S. from its federal prison population.
"I love that," Trump said. "If we could take some of our 20-time wise guys that push people into subways and hit people over the back of the head and purposely run people over in cars, if he would take them, I would be honored to give them."
"I don't know what the law says on that," he added. "I have suggested that, why should we stop at people who cross the border illegally?"
Podcaster and former Obama administration staffer Jon Favreau said Trump's remarks could be summed up as: "He wants to send American citizens to a foreign gulag."
Trump has invoked the Alien Enemies Act of 1798, which permits the U.S. government to detain and deport noncitizens during wartime, to expel 238 Venezuelan migrants to El Salvador, where they are being held in the country's Terrorism Confinement Center (CECOT). About two dozen people who were originally from El Salvador were also sent to the prison, including Kilmar Abrego Garcia—a Maryland man who had legal protected status, was not convicted of a crime, and had previously received a court order barring the U.S. from deporting him to his home country for fear of persecution and torture.
Trump said several times in his comments Sunday that he was unsure of the legality of sending U.S. federal prison inmates to a foreign prison system.
In February, after Bukele first offered to imprison U.S. citizens, Lee Gelernt of the ACLU told NPR that the idea was a "non-starter."
"You may not deport a U.S. citizen, period," Gelernt, deputy director of the group's Immigrants' Rights Project, told the outlet. "The courts have not allowed that, and they would not allow it... It would be blatantly unconstitutional to deport a U.S. citizen."
Secretary of State Marco Rubio also touted Bukele's offer at the time, calling it "an extraordinary gesture never before extended by any country."
Trump's remarks on potentially expanding his deal with the Salvadoran president to include U.S. citizens followed U.S. District Judge Paula Xinis's order mandating the return of Abrego Garcia to the U.S. with a deadline of 11:59 pm Monday.
Xinis on Sunday rejected the administration's request to lift the order, saying Abrego Garcia's expulsion had been "wholly lawless" and that the "risk of harm shocks the conscience."
On Monday, the administration asked the U.S. Supreme Court to block Xinis' order, saying her demand that the White House adhere to the Constitution was "district-court diplomacy" and accusing the judge of trying to "seize control over foreign relations."
The administration has attacked the district court in Washington, D.C. in recent days over the order, with homeland security adviser Stephen Miller calling on Congress last week to "step up" and abolish the panel by refusing to fund it.
The White House has called Abrego Garcia's expulsion and imprisonment in El Salvador an "administrative error" and claimed the Maryland father is no longer under U.S. jurisdiction, so the administration cannot order him to be returned.
"We suggest the judge contact President Bukele because we are unaware of the judge having jurisdiction or authority over the country of El Salvador," said White House Press Secretary Karoline Leavitt last week.
Washington Monthly contributor David Atkins said that under the same logic, "there is also nothing that prevents them from shipping American citizens to a gulag in El Salvador and saying, 'Nothing we can do.'"
As Trump expressed interest in expelling U.S. citizens to a foreign prison system, Aaron Reichlin-Melnick of the American Immigration Council pointed out that the details of the White House's deal with Bukele have not been publicly disclosed.
"We literally know nothing about it, other than we're paying them $6 million," said Reichlin-Melnick. "No law in the United States authorizes us to pay another country to imprison people. And yet! They're doing it."
Setareh Ghandehari, advocacy director for Detention Watch Network, toldNewsweek Monday that the deal with Bukele is being used "as a tool of propaganda with the core objective to dehumanize and villainize people while carrying out their cruel mass detention and deportation agenda unchecked."
"Bottom line, Trump and Bukele's partnership deepens collaboration with authoritarian leaders," said Ghandehari, "further jeopardizing democratic values in the U.S. and around the world."
"We literally know nothing about it, other than we're paying them $6 million," said Reichlin-Melnick. "No law in the United States authorizes us to pay another country to imprison people. And yet! They're doing it."
Setareh Ghandehari, advocacy director for Detention Watch Network, toldNewsweek Monday that the deal with Bukele is being used "as a tool of propaganda with the core objective to dehumanize and villainize people while carrying out their cruel mass detention and deportation agenda unchecked."
"Bottom line, Trump and Bukele's partnership deepens collaboration with authoritarian leaders," said Ghandehari, "further jeopardizing democratic values in the U.S. and around the world."
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