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TRUMP’S ATTEMPT TO DESTROY DUE PROCESS MEETS 7–2 SCOTUS DEFEAT  
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Mark Joseph Stern
May 16, 2025
Slate
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_ It is unclear whether Thomas and Alito would offer any restraint
whatsoever on Trump exercising absolute power. The rest of the court,
by contrast, is seemingly running out of patience for its tricks,
misrepresentations, and defiance. _

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On Friday afternoon, the Supreme Court issued an emphatic and
unusual decision
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that the Trump administration violated the due process rights of
Venezuelan migrants in its attempt to deport them to a Salvadoran
prison. The government’s late-night race to expel these individuals,
the court held, “surely does not pass muster” under the
Constitution, failing to provide them with fair notice and an
opportunity to contest their removal. The court also extended an
injunction to stop the government from deporting an entire class of
migrants under the Alien Enemies Act of 1798 while the case works its
way through the lower courts. Only Justice Samuel Alito, joined by
Justice Clarence Thomas, noted dissent.

In all, the ruling marks an astonishing defeat for the Trump
administration. The court did not decide whether the president can, in
fact, wield the Alien Enemies Act to banish migrants to a foreign
prison. But it imposed vital constitutional safeguards on his efforts
to do so, protecting more
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people from unlawful expulsion and imprisonment overseas. And the
court did all this on an exceptionally expedited basis, with minimal
briefing and no argument. For the majority, it was not a close call:
The government’s attempt to disappear
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to a foreign black site is egregiously unconstitutional.

Friday’s ruling is a follow-up to the Supreme Court’s
intervention, last month, in the Trump administration’s ongoing
scheme to summarily deport migrants to CECOT
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a brutal El Salvador prison. In March, the president invoked the
Alien Enemies Act
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18th-century wartime law
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applies to invading armies—to justify rushing these individuals out
of the country outside of usual immigration procedures. He accused
them, without evidence
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of belonging to a Venezuelan gang, which he deemed to be a “foreign
terrorist organization.” The government first expelled more than 200
men to CECOT in March, in apparent violation of a district court
order. Credible evidence showed that it was preparing to do the same
on April 18 in the Northern District of Texas. When lower courts
refused to step in, the migrants’ lawyers asked the Supreme Court
for emergency aid. It obliged, issuing a one-paragraph order
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before 1 a.m. halting the deportations.

In its new, unsigned decision—which was released without
warning—the court explained and expanded its dramatic order last
month. Immigrants, it noted, are entitled “to due process of law in
the context of removal proceedings,” a fact that the court
unanimously affirmed in a related case
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weeks ago. So, under the Fifth Amendment, “no person shall be
removed from the United States without opportunity, at some time, to
be heard.” Here, the majority held, at a minimum, that migrants
“must have sufficient time and information to reasonably be able to
contact counsel, file a petition, and pursue appropriate relief.” It
noted pointedly that, in the case of Kilmar Abrego Garcia
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the government has claimed that it has no authority to retrieve
migrants who’ve been sent to CECOT, and that federal courts have no
jurisdiction
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order their return. Migrants’ interests in a robust due process, the
majority wrote, “are accordingly particularly weighty.”

But the government barely provided any due process at all. Instead, it
gave migrants notice “roughly 24 hours” before they were scheduled
to be expelled to CECOT. These “notices” were entirely “devoid
of information about how to exercise due process rights to contest
that removal.” Such a barebones, eleventh-hour warning “surely
does not pass muster,” the court concluded. It therefore decided, as
a matter of law, that the Trump administration had run afoul of
migrants’ due process rights. And it instructed the lower courts to
determine exactly what kind of process _would _satisfy the
Constitution. In the meantime, the court maintained its freeze on
further deportations under the Alien Enemies Act, prohibiting the
government from attempting more summary deportations from Texas to El
Salvador under cover of darkness.

This holding, alone, is remarkable. The Supreme Court pointedly did
not wait for the U.S. Court of Appeals for the 5th Circuit to opine
on the due process question. Instead, it leapt over the 5th Circuit
and decreed that the Trump administration ran afoul of the
Constitution, only leaving the lower court to decide the contours of
what process _is _due. (And the 5th Circuit’s eventual decision
on the matter will stay frozen until SCOTUS intervenes again.) This
procedure is rarely deployed and is reserved for extraordinary cases
in which a lower court has failed to act swiftly and responsibly.
Indeed, the majority opinion bristles with irritation that the
(conservative-leaning) lower courts did not swiftly address the
planned deportations in this case, dragging their feet for so long
that SCOTUS had to step in. The majority sounds irritated not
just_ _that the government failed to heed its earlier admonition that
migrants must get due process, but also that the lower courts did not
expeditiously enforce that protection here.

It is also notable that the court’s injunction protects all migrants
who, as a class, are being detained in the North District of Texas and
face deportation under the Alien Enemies Act. (The government was
reportedly gathering these individuals in Texas in preparation for
their expulsion.) Just six weeks ago, the court _lifted_
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classwide restraining order (by a 5–4 vote) that had stopped these
deportations. It held
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the migrants had to challenge their expulsions to CECOT in habeas
proceedings, which are typically pursued individually, not classwide.
Now, however, the court has granted classwide relief, at least for
now, to ensure that the government can’t pick off non-plaintiffs and
quietly fly them to El Salvador. Its decision applies directly to
migrants held in one part of Texas. But the logic of its due process
holding applies to migrants around the country—that is, if the
government chooses to obey it
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The majority’s discussion of this issue evinces deep skepticism
toward the executive branch’s credibility, questioning whether it
could be trusted to respect the rights of _any _migrants if they are
not all protected as a class. The Justice Department, it noted, had
promised not to deport the handful of named plaintiffs leading this
case while it is pending. But it did not promise to refrain from
deporting anyone else. “We reject the proposition,” the majority
wrote caustically, “that a class-action defendant may defeat class
treatment, if it is otherwise proper, by promising as a matter of
grace to treat named plaintiffs differently.”

Still, the court did not definitively decide whether the ultimate
question here—whether the Alien Enemies Act may be wielded against
migrants—may be resolved through class litigation. Nor did it rule
on that pressing question, though Justice Brett Kavanaugh wrote
separately to say that it should do so as soon as possible, and that
he would have scheduled such proceedings immediately. The threat of
deportation under the Alien Enemies Act therefore continues to loom
over all noncitizens whom the administration seeks to persecute.
(Almost every lower court to consider this question has held
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the 1798 law does _not _authorize fast-track removals of
immigrants.) Friday’s decision nonetheless suggests that a majority
of the justices are skeptical of this effort, eager as they are to
institute durable safeguards that significantly impede and undermine
the entire scheme.

Alito’s dissent, joined by Thomas, focuses on procedural and factual
disagreements. The justice continued to insist that the court lacks
jurisdiction to protect the migrants at this juncture, rehashing
technical arguments that are simply false
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And he once again underplayed the real danger
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migrants faced of imminent danger on April 18 had SCOTUS not acted. In
that sense, Alito’s opinion further highlights a divide between the
majority and the dissent on how much trust should be afforded to the
Trump administration. Alito and Thomas believe it deserves immense
deference to the point of blind trust. Just yesterday, these two
justices suggested
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district courts should not be allowed to issue nationwide injunctions
to stop imminent, unconstitutional harms; today they seek to crack
down on the classwide relief to protect plaintiffs’ rights. It is
increasingly unclear whether Thomas and Alito would
offer _any_ restraint whatsoever on Trump exercising absolute power.
The rest of the court, by contrast, is seemingly running out of
patience for its tricks, misrepresentations, and defiance of basic
constitutional principles.

The Supreme Court is going to hand Trump many victories over the
course of his second term. But this issue has clearly divided the
conservative supermajority and disturbed several justices who are
generally inclined to rule for this president. It’s easy to see why.
What the government attempted to pass off here was an alarming and
foundational affront to the Constitution. If the court did not draw a
line here, it is hard to imagine where it ever would.

MARK JOSEPH STERN is a Slate senior writer.

Slate [[link removed]] is an online magazine of news, politics,
technology, and culture. It combines humor and insight in thoughtful
analyses of current events and political news. Choose the newsletters
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