SCOTUS: Breaking All Norms By Vetoing the Alien Enemies Act

The stroke of a pen just after midnight can reveal more about a court than a hundred pages of published prose. In the small hours of April 19, the Supreme Court directed the Trump administration to halt every deportation undertaken pursuant to the Alien Enemies Act. That unsigned stay did not confine itself to the two Venezuelan petitioners who had managed to file habeas papers in the Northern District of Texas. Instead, it protected an undefined putative class that no court had certified. One week earlier, the same Justices had dissolved a nationwide injunction on the ground that the Alien Enemies Act is, except for narrow habeas review, largely immune from judicial second‑guessing. The rapid pivot invites a hard question: can a tribunal that touts restraint on Monday credibly seize sweeping control over foreign‑affairs decisions on Saturday? I argue that it cannot, and that the Court’s intervention violates the very separation‑of‑powers principles it claims to revere.

Begin with the statute itself. Enacted in 1798, the Alien Enemies Act empowers the President to detain or remove citizens of hostile powers when war is declared or invasion threatened. Congress granted broad discretion to the Executive precisely because national security may require prompt action. Judicial review, as Ludecke v. Watkins made clear, narrows to verifying identity and statutory triggers, nothing more. In its April 7 order transferring venue to Texas, the Supreme Court recited Ludecke and insisted that courts must not intrude into the substance of presidential determinations. The detainees, the Court said, deserve notice and an opportunity to file habeas petitions in the district of confinement, but beyond that the judiciary must stand aside. Yesterday’s emergency hearing before Judge Boasberg established that the government has satisfied every court‑ordered safeguard for Alien Enemies Act detainees, including serving removal notices and allowing sufficient time to file habeas petitions. Many detainees have already exercised that right, and those who have not are now eligible for deportation, as others in the same position have been.

Standing aside is exactly what the Fifth Circuit chose to do when counsel for the detainees rushed to New Orleans on April 18. The panel concluded that it is a court of review, and until the district judge ruled, no appeal lay. That procedural pause was consistent with the Supreme Court’s own instruction. Yet within hours the Justices themselves leapt ahead of the trial court and the appellate court they had praised, issuing a nationwide stay. The move nullified their earlier rhetoric about orderly process and exposed a preference for reactive headline management over coherent doctrine.

The first breach of norms is conceptual: the Court fashioned relief for non‑parties. Rule 23 draws a bright line. Until a class is certified, unnamed persons are strangers to the litigation. A district judge lacks power to issue injunctive relief for them, and an appellate court possesses no jurisdiction over their claims. The Supreme Court’s midnight order ignored that limit. By invoking the phrase "putative class," the Justices acknowledged that certification had not occurred, then treated that absence as legally irrelevant. The result is a nationwide injunction without the findings, typicality analysis, or adequacy inquiry that Rule 23 demands. If such an order is permissible, class certification becomes optional whenever litigants can frame urgent equities.

A second breach is procedural. The Court interposed itself before the ordinary course of litigation concluded. No merits decision existed, no district judge had completed fact‑finding, and the Fifth Circuit had received but not resolved a stay request. For years, the Court has chastised litigants who seek premature relief, citing the virtue of allowing lower tribunals to work. In travel‑ban and asylum cases, for example, the Justices urged patience, sometimes leaving controversial policies in limbo for months. Yet in this matter the American Civil Liberties Union, already engaged in what critics describe as serial forum shopping and duplicative filings from Colorado to New York, escaped even a gentle reprimand. The majority’s order remained silent on those tactics, rewarding procedural gamesmanship instead of discouraging it. Faced with the prospect of detainees boarding planes, the Court intervened instantly, even though its own April 7 ruling placed the onus on the detainees to litigate in Texas. Consistency in procedural posture, and in the Court’s willingness to police abusive litigation behavior, ought not depend on the political identity of the President who signs the executive order.

A third breach is functional. By enjoining removals on an undefined national scale, the Court commandeered powers textually assigned to the Executive. Deportation requires coordination among foreign ministries, charter airlines, and domestic detention facilities. When the judiciary suspends that coordination without a record, it does more than preserve jurisdiction; it intrudes into the mechanics of foreign policy. Alexander Hamilton warned that such encroachment erodes republican checks. If a President must seek pre‑approval from judges each time he invokes a war statute, the capacity to defend the nation becomes hostage to judicial timetables.

Consider the Court’s stated rationale. The April 19 stay rests on a fear of irreparable harm: once removed, a detainee may not easily return to vindicate an eventual victory. That harm is real, yet irreparability alone never suffices. Extraditions carry identical stakes; nevertheless, federal courts decline to halt them unless the petitioner demonstrates a likelihood of success on the merits. And the only safeguard the Justices themselves imposed on April 7 was procedural: give each alien notice and enough time to file habeas. Thanks to the emergency hearing in Washington earlier on April 18, the record already shows that those notices were served and that detainees could, and many did, seek relief in Texas. Here the other merits questions remain unanswered. Is Tren de Aragua a hostile foreign power? Does its cross‑border crime wave satisfy the invasion clause? The Supreme Court refused to say. Absent a merits foothold, the stay extends the Court’s equitable reach far beyond historic practice.

One might counter that the stay is temporary, a mere procedural safeguard while the Fifth Circuit deliberates. The order, however, contains no expiration date. It freezes executive discretion "until further order," a phrase that often stretches into months. In that sense the stay operates as a preliminary injunction issued without the findings Rule 65 ordinarily requires. The Court is at once plaintiff, fact‑finder, and chancellor, a posture incompatible with separation‑of‑powers theory.

The deeper inconsistency lies in the Court’s newfound skepticism toward the Executive after championing deference just a week earlier. In the April 7 opinion, the majority proclaimed that Article II enjoys wide latitude under the Alien Enemies Act, subject only to minimal judicial oversight. If that premise is correct, then the logical solution to any notice defect is not a blanket stay but a narrow order compelling the government to supply notice. Instead, the Court opted for a categorical bar that suspends the very discretion it celebrated. Such vacillation cannot be credited to evolving facts; the relevant facts were known on April 7 and remain unchanged.

What explains the shift? Cynics will say the Court bowed to public criticism of its shadow‑docket decision. Perhaps, but the institution’s mandate is to act on law, not on editorial pages. A more charitable reading is institutional anxiety. Rumors circulated that the administration might expedite deportations over the weekend, effectively mooting pending habeas petitions. The Court, worried that its process would be circumvented, seized temporary control. Even on that view, however, the response is disproportionate. Courts possess contempt powers, and the Executive, as recent events demonstrate, takes those powers seriously. An injunction directed at specific removals of identified petitioners would have sufficed.

A comparison with earlier immigration controversies sharpens the critique. When President Biden used parole authority to parole tens of thousands of migrants into the interior, district judges enjoined the program, citing statutory violations. The Supreme Court stayed those injunctions, emphasizing that policy disputes belong to the political branches. The Court insisted the government should continue operating while litigation proceeded. Yet when President Trump deploys a statute that unambiguously grants wartime removal power, the Court halts enforcement wholesale. The latitudinarian standard applied to Biden shrinks to a monocle when Trump occupies the Oval Office.

Some defenders invoke the Court’s duty to safeguard habeas corpus. They argue that unless removals pause, district judges cannot provide effective relief. That claim conflates remedy with process. Habeas exists to test the legality of detention. If a petitioner is removed before judgment, the court may dismiss the petition as moot, a harsh result but a result consistent with centuries of precedent. The gravity of deportation does not itself confer an entitlement to nationwide injunctive relief. Indeed, the judiciary has long tolerated extraditions during pending appeals, trusting diplomatic channels to correct wrongful transfers. Absent a finding that the Alien Enemies Act has been wrongly invoked, the stay is prophylactic paternalism.

The final paragraph of the Court’s April 19 order invites the government to respond after the Fifth Circuit acts. That gesture appears respectful of the lower courts, yet it is hollow. The Fifth Circuit now labors under the weight of a Supreme Court directive that presumes irreparable harm. Any panel would hesitate to contradict that presumption. The result is hierarchical pressure disguised as collegial deference. Meanwhile, the Executive cannot execute a statute passed by Congress and signed by the second President of the United States. A stay aimed at mercy becomes, in practice, a veto.

The constitutional architecture designed by Madison divides power precisely to avoid such unilateral vetoes. Congress writes statutes, the President enforces them, and courts interpret them when necessary. By stepping outside interpretation into temporary suspension, the Supreme Court accumulates legislative and executive attributes. That accumulation courts distrust among citizens who rightly wonder whether any branch will restrain itself.

What corrective measures remain? Congress can clarify Rule 23 by specifying that no court may grant class‑wide relief before certification unless the government stipulates to class treatment. It can also prescribe explicit notice periods where none exist, thereby eliminating judicial guesswork. The Executive can request expedited merits briefing, forcing the judiciary to confront statutory questions head‑on. Above all, citizens must insist that courts explain large‑scale emergency orders with full opinions rather than cryptic midnight commands.

When Justice Jackson chastised the majority for a "fly‑by‑night" approach, she addressed not only the April 7 venue ruling but the institutional tendency toward opacity. That tendency, whether it favors or hinders a particular president, undermines public confidence. The Alien Enemies Act controversy is therefore both a discrete dispute about Venezuelan detainees and a referendum on judicial candor.

If the Court desires genuine restraint, it must practice it. That means allowing district judges to build records, letting appellate courts supervise, and engaging only when necessary. It also means resisting the temptation to wield equitable power as a solvent for every political crisis. The midnight stay, however well intentioned, drifts from those principles. It represents a jurisprudence of emergency that the Framers would not recognize. Hamilton’s least dangerous branch cannot stay least dangerous if it exercises a latent veto over the Commander in Chief every time the docket grows uncomfortable.

Constitutional norms erode quietly, often under banners that read "prudence" or "fairness." They erode one emergency stay at a time. The April 19 order, because it contradicts the Court’s own reasoning and disregards elementary procedural rules, loosens mortar that holds the separation of powers together. Tidy explanations can come later, but structural injury happens now. The better course is to vacate the stay, instruct the district court to decide class certification promptly, and limit equitable relief to named plaintiffs unless and until Rule 23 says otherwise.

Whether the Court will retreat remains uncertain. For the moment, its midnight command stands as a stark reminder that the judiciary’s gravest threats to liberty arise not from bold opinions published at term’s end, but from small orders issued when ordinary citizens sleep. Eternal vigilance, Jefferson warned, is the price of liberty. That vigilance must include vigilance over judges, especially when they declare themselves guardians of prudence while quietly rewriting the map of constitutional powers.

The lesson is sobering. When a putative class becomes a passport to nationwide relief, and when deference yields to improvised injunctions, the separation of powers bends. It is bending now. Unless corrected by the branches and by the people themselves, it may not easily spring back.

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