Alito blasts late-night ruling on deportation flights as 'legally questionable'

Supreme Court Justice Samuel Alito faulted his colleagues for temporarily halting deportation flights under the Alien Enemies Act “literally in the middle of the night.”

Alito’s dissent, also sent out at nearly midnight Saturday, came after the court agreed in the early hours of the morning to block for now any additional flights that would transport migrants to a Salvadoran prison.

"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,” he wrote.

“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.”

The court took the unusual step of issuing its ruling without waiting for Alito to share his dissent – another detail demonstrating the swiftness of the court's actions after it was asked to intervene.

While the American Civil Liberties Union (ACLU) had challenged the suspected removals in lower courts, it quickly launched appeals seeking emergency relief.

“The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court,” the Supreme Court’s order reads. 

The class extends to any migrant detained in the Northern District of Texas who is being removed under the 18th century Alien Enemies Act. It does not apply elsewhere, though judges overseeing separate cases have temporarily blocked deportations for those detained in the Southern District of New York, the District of Colorado and the Southern District of Texas.  

The 1798 law enables migrants to be summarily deported amid a declared war or an “invasion” by a foreign nation. The law has been leveraged just three previous times, all during wars, but Trump contends he can use it because the Venezuelan gang Tren de Aragua is effectively invading the U.S.

The Trump administration first began using the law last month when it deported more than 100 Venezuelan men to a Salvadoran mega prison. Also on those flights were Salvadoran nationals the government has said are members of the MS-13 gang.

But the removal of Kilmar Abrego Garcia, a Salvadoran national and Maryland resident who an immigration court in 2019 ordered protected from deportation to his home country, shows the stakes of such removals.

The Justice Department has said Abrego Garcia was removed due to an “administrative error,” but it has since argued it has no power to secure the return of him or any of the other men once they were released into the custody of another government.

The Trump administration on Saturday asked for clarification from the high court, asking it to refine its order to allow Alien Enemies Act deportations for any migrant who has not challenged their removal. It also asked the court to clarify whether they may remove migrants to El Salvador under immigration authorities.