President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington. (AP Photo/Alex Brandon)
The U.S. Supreme Court’s weekend order that blocked the Trump administration from carrying out certain deportations under the Alien Enemies Act (AEA) has been flamed by the Justice Department as an “unprecedented injunction” that is “fatally premature,” according to the DOJ, as the applicants have “improperly skipped over the lower courts before asking this one for relief,” it says.
“This Court is ‘a court of review, not first view,”” wrote Solicitor General D. John Sauer in the DOJ’s response to the Supreme Court order, which was handed down early Saturday morning.
“Yet the application insists on judicial review in reverse,” Sauer said. “It calls for this Court to be the first to resolve due-process challenges to the adequacy of notice that designated enemy aliens receive, on behalf of a putative class that no court below has certified, on a nonexistent record.”
The Saturday order and deportations case comes in the aftermath of an April 7 Supreme Court ruling, which dissolved a nationwide injunction barring summary deportations under the auspices of the obscure wartime law. All nine justices voted against the government’s use of the AEA without due process.
Last week, attorneys with the American Civil Liberties Union (ACLU) filed a petition for the writ of habeas corpus in Texas federal court, challenging the “AEA Process” as a whole. The plaintiffs also filed for a temporary restraining order and class certification.
On Thursday, U.S. District Judge James Wesley Hendrix — a Donald Trump appointee — denied the motion for a restraining order. The court credited a statement from Department of Justice attorneys that none of the plaintiffs faced “imminent risk of summary removal” under the AEA. Hendrix reserved ruling on the class certification motion. The ACLU quickly filed an interlocutory appeal on Friday with the U.S. Court of Appeals for the 5th Circuit, stylized as an emergency request for a temporary restraining order.
That appeal was still pending when the plaintiffs filed their emergency application for an emergency injunction with the Supreme Court.
In a blistering dissent Saturday, Justice Samuel Alito wrote that he believed the Supreme Court’s order was “hastily and prematurely granted” — nor was it “necessary or appropriate,” he said.
“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 five-page rebuke.
“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,” Alito said, noting how Justice Clarence Thomas also dissented.
“Both the Executive and the Judiciary have an obligation to follow the law,” Alito added. “The Executive must proceed under the terms of our order … and this Court should follow established procedures.”
More from Law&Crime: ‘Literally in the middle of the night’: Justice Alito slams SCOTUS for issuing ‘unprecedented’ relief by stopping Trump deportations carried out under wartime law
Trump’s DOJ echoed much of what Alito said in its response filing Saturday, with two major points of contention being whether the Supreme Court had the jurisdiction to make such a ruling in the AEA deportations case and how accurate the claims being made were about deportations being imminent.
“Applicants gave the district court only 42 minutes to rule on their motion before immediately proceeding to the court of appeals, thus divesting the district court of jurisdiction,” Sauer said. “That maneuvering left the district court ‘unable to complete its review of the filings’ and actually rule on applicants’ claims.”
While the Trump administration was unable to respond to the allegations being made about deportations happening before the Supreme Court issued its ruling, Alito said that a DOJ lawyer in a different case told the U.S. District Court judge who is overseeing it on Friday that “no such deportations” were being carried out by the government or “planned to occur.”
“The government has committed to not removing the named petitioners pursuant to the AEA until their habeas proceedings have concluded,” Sauer alleged.
“Applicants dismiss those problems by speculating that AEA detainees will be removed imminently, before their claims can be further tested,” he said. “But applicants ignore that the government has provided advance notice to AEA detainees (including the named petitioners) prior to commencing AEA removals. Detainees receiving such notices have had adequate time to file habeas claims — indeed, the putative class representatives and others have filed such claims. And the government has agreed not to remove pursuant the AEA those AEA detainees who do file habeas claims (including the putative class representatives).”
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Colin Kalmbacher contributed to this report.
