The Courts Are The Scofflaws Behind Our Current Constitutional Crisis

“Both the Executive and the Judiciary have an obligation to follow the law.” 

Those thirteen words, penned by Justice Samuel Alito on Holy Saturday, represent the first admission by the judiciary that courts too can wrongly flout the law. 

Justice Alito’s stark acknowledgement concluded his bullet-point evisceration of the Supreme Court’s “unprecedented” command that President Trump not remove a “putative class of detainees” under the Alien Enemies Act. The Supreme Court had entered that order shortly after midnight after the American Civil Liberties Union (“ACLU”) filed an emergency application asking alternatively for an emergency injunction, an immediate administrative injunction, a writ of mandamus, or a stay of removal, to prevent the Trump Administration from removing Venezuelans to El Salvador pursuant to the Alien Enemies Act.

The ACLU’s scattershot request for relief from the Supreme Court came a mere two days after they sued the Trump Administration in a federal court in Texas — and before that court or the Fifth Circuit Court of Appeals had an opportunity to rule on the request for an injunction barring the removal of any more aliens to El Salvador. 

The ACLU filed the habeas corpus complaint on Wednesday in the Northern District of Texas, on behalf of two plaintiffs, identified merely as A.A.R.P. and W.M.M., but the ACLU also sought certification of a class defined as “[a]ll noncitizens in custody in the Northern District of Texas who were, are, or will be subject to the March 2025 Presidential Proclamation entitled ‘Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua’ and/or its implementation.”

Simultaneously, the ACLU filed a motion for a Temporary Restraining Order to prevent the Trump Administration from removing any aliens under the presidential proclamation Trump signed on March 14, 2024. That proclamation provided that “all Venezuelan citizens 14 years of age or older who are members of TdA [Tren de Aragua], are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”

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