Shortly before 1 a.m. on Saturday, the Supreme Court issued an emergency order halting the Trump administration’s reported efforts to fly Venezuelan migrants to an El Salvador prison before they could challenge their deportation. The court’s late-night intervention is an extraordinary and highly unusual rebuke to the government, one that may well mark a turning point in the majority’s approach to this administration.
For months, SCOTUS has given the government every benefit of the doubt, accepting the Justice Department’s dubious assertions and awarding Trump immense deference. On Saturday, however, a majority of justices signaled that they no longer trust the administration to comply with the law, including the court’s own rulings. If that is indeed the case, we are likely careening toward a head-on conflict between the president and the court, with foundational principles of constitutional democracy hanging in the balance.
SCOTUS’s emergency order in A.A.R.P. v. Trump arose out of the government’s unlawful efforts to ship Venezuelan migrants to a Salvadoran prison by invoking the Alien Enemies Act of 1798. On Thursday, lawyers for these individuals told a federal court that the government was preparing to summarily deport them to El Salvador, where they would be indefinitely confined at a notorious detention center.
A federal judge in the Southern District of Texas had already blocked their removal—but the government sought to evade this order by busing the migrants into the Northern District of Texas, where the restraining order would not apply. It then gave these migrants “notices,” in English only, declaring that they would be deported immediately, without stating that they could contest their deportations in court. (Officials refused to give these notices, or any other information, to the migrants’ lawyers.) The government intended to fly them out of the country within 24 hours, according to court filings.
There is an Israeli military strategy called the “fog procedure”. First used during the second intifada,...
