Supreme Court Issues Unusual Order in Alien Enemies Act Deportation Case
Last night, the Supreme Court issued a very unusual order in an Alien Enemies Act deportation case. Here it is in its entirety:
There is before the Court an application on behalf of a putative class of detainees seeking an injunction against their removal under the Alien Enemies Act. The matter is currently
pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. 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. See 28 U. S. C. §1651(a). Justice Thomas and Justice Alito dissent from the Court’s order. Statement from Justice Alito to follow.
As I write these words (Saturday morning), we do not yet have have Justice Alito’s statement, and therefore do not yet know why he and Thomas dissented.
What do we make of this? I largely agree with the analysis of Georgetown Prof. Steve Vladeck. After providing a helpful overview of the AEA litigation to date, he writes:
Obviously, there’s still a lot we don’t know. But at least initially, this strikes me as a massively important—and revealing—intervention by the Supreme Court, for at least three reasons:
First, the full Court didn’t wait for the Fifth Circuit—or act through the individual Circuit Justice (Justice Alito).2 Even in other fast-moving emergency applications, the Court has often made a show out of at least appearing to wait for the lower courts to rule before intervening—even if that ruling might not have influenced the outcome. Here, though, the Court didn’t wait at all; indeed, the order specifically invites the government to respond once the Fifth Circuit weighed in—acknowledging that the Fifth Circuit hadn’t ruled (and, indeed, that the government hadn’t responded to the application in the Supreme Court) yet. This may seem like a technical point, but it underscores how seriously the Court, or at least a majority of it, took the urge
Article from Reason.com
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