The U.S. Supreme Court’s latest decision on President Donald Trump’s deportation of foreign terrorists sparked backlash over the weekend, although the court did permit the president to continue using the controversial Alien Enemies Act (AEA). In an unsigned per curiam order issued late Friday, the Supreme Court maintained its previous halt on deportations of Tren de Aragua (TdA) foreign terrorist organization members and affiliates, stating that the Trump administration was providing TdA members slated for deportation with inadequate notice before removing them from the U.S.

Last month, the Supreme Court vacated a series of temporary restraining orders (TROs) issued by Judge James Boasberg of the U.S. District Court for the District of Columbia, which had barred the president and his deputies from carrying out deportations under the auspices of the AEA. The Supreme Court clarified that the lower court lacked the jurisdiction or the authority to issue its ruling, since the only judicial oversight allowed in the president’s use of the AEA would be habeas corpus proceedings, which have to originate in the district in which the complainants are detained: the Northern District of Texas, in this case, not the District of Columbia.

Shortly afterwards, however, the Supreme Court intervened — in a manner dissenting Justices Samuel Alito and Clarence Thomas described as “unprecedented and legally questionable” — in the subsequent habeas proceedings initiated by the TdA members detained in Texas and awaiting deportation. The TdA members claimed that they were going to be deported “imminently” and petitioned the district court for a TRO, demanding a response from the court in under an hour. When the district court did not issue a TRO, the TdA members appealed to the U.S. Circuit Court for the Fifth Circuit, demanding the same injunction within a similar timeframe. When the circuit court did not issue a TRO prior to the TdA members’ deadline, the group appealed to the Supreme Court.

The Supreme Court then issued an emergency injunction halting the deportation of the TdA members. Alito noted that the court may not have had jurisdiction to issue its injunction, since neither the district court nor the circuit court had technically denied issuing a TRO but had only failed to do so within the timeframe demanded by the TdA members. Furthermore, the Supreme Court had no record of fact before it from the lower courts, since the absence of TROs was appealed before any record could be accumulated. Alito and Thomas, in a blistering dissent, stated that they “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 circuit court later denied the TdA members’ request for an injunction, citing lack of jurisdiction since the detainees had given the district court, which also later ruled against the TdA members, only 42 minutes to respond before appealing to the circuit court. In their Friday order, seven of the nine Supreme Court justices vacated the circuit court’s decision and remanded the case back to the circuit court. “The Fifth Circuit erred in dismissing the detainees’ appeal for lack of jurisdiction,” the Supreme Court’s order read. It continued, “A district court’s inaction in the face of extreme urgency and a high risk of ‘serious, perhaps irreparable,’ consequences may have the effect of refusing an injunction. … Here the District Court’s inaction … had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm.”

The Supreme Court instructed the circuit court to examine the length of notice the Trump administration was providing TdA members prior to deportation, stating that “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.” The Supreme Court continued, “But it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case. We remand the case to the Fifth Circuit for that purpose.”

“To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated,” the order read. The justices emphasized that they were not determining that the president did not have the authority to carry out deportations under the AEA. “We recognize the significance of the Government’s national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution,” the order stated.

In a concurring opinion, Justice Brett Kavanaugh explained that the Supreme Court was only holding up deportations so that “the Judiciary can decide whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act before they are in fact removed” and, if they can be lawfully removed, “what notice is due before removal.”

Alito and Thomas were the sole justices who dissented from the majority’s opinion. In the dissenting opinion he authored, Alito clarified, as before, that the Supreme Court likely lacked “jurisdiction and therefore [has] no authority to issue any relief.” He continued, “Second, even if we had such authority, the applicants have not satisfied the requirements for the issuance of injunctive relief pending appellate review. Third, granting certiorari before any decision on the merits has been made by either the District Court or the Court of Appeals is unwarranted.”

“From the Court’s order, it is not entirely clear whether the Court has silently decided issues that go beyond the question of interim relief. (I certainly hope that it has not.) But if it has done so, today’s order is doubly extraordinary,” Alito stated, in reference to the majority’s unprompted decision to convert a request for injunctive relief into a writ of certiorari. “Granting certiorari before a court of appeals has entered a judgment is a sharp departure from usual practice, but here neither the Court of Appeals nor the District Court has decided any merits questions. We have said more times than I care to remember that ‘we are a court of review, not first view,’” the justice continued. Noting that the lower courts had only decided that the TdA members were not entitled to injunctive relief, Alito added, “If the Court has gone beyond that question, it has blazed a new trail. It has plucked a case from a district court and decided important issues in the first instance. To my eyes, that looks far too much like an expansion of our original jurisdiction.”

The president responded to the Supreme Court’s decision in a Truth Social post. “The Supreme Court has just ruled that the worst murderers, drug dealers, gang members, and even those who are mentally insane, who came into our Country illegally, are not allowed to be forced out without going through a long, protracted, and expensive Legal Process,” he wrote, warning that that process “will take, possibly, many years for each person, and … will allow these people to commit many crimes before they even see the inside of a Courthouse.” He continued, “The Supreme Court of the United States is not allowing me to do what I was elected to do. Sleepy Joe Biden allowed MILLIONS of Criminal Aliens to come into our Country without any ‘PROCESS’ but, in order to get them out of our Country, we have to go through a long and extended PROCESS.” The president quipped, “This is a bad and dangerous day for America!”

Former federal prosecutor Andrew McCarthy rebutted the president in the pages of National Review. “The Supreme Court is not preventing the president from doing what he was elected to do,” he wrote. “Like the rest of the Court, Justices Alito and Thomas are trying to get to the right legal result on what must be done before the Venezuelan aliens are deported,” McCarthy continued, noting that Alito and Thomas “were members of last month’s … unanimous decision that the aliens have due process rights.” He added, “The questions are about how those rights apply in this situation; and you may notice that, in the meantime, the aliens are detained — the Court hasn’t turned them loose…”

Article III Project founder Mike Davis noted that, although the Supreme Court only “punted” the case to the circuit court, the justices risk destroying their credibility if they are inconsistent in their reasoning and decision-making. “In 2023, Justice Kavanaugh wrote a Supreme Court opinion essentially holding President Biden has the discretion to allow an illegal-alien mass invasion of America,” he said, referring to the case of the United States v. Texas. He also pointed out that Justice Amy Coney Barrett argued against intervening in an immigration case in 2024 because inferior courts had not yet reached a judgment but was among the majority last week who converted a petition for injunctive relief in an immigration case to a writ of certiorari. Davis quipped, “The Court will destroy its legitimacy if it now holds President Trump cannot, minimally, deport terrorists.”