'Devastating': Sotomayor slams Trump as 'lawless' for using 1798 law to deport immigrants

07 April

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."

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