Taking stock of Trump’s immigration requests on the emergency docket

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

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After returning to the White House with a promise to remake immigration policy, President Donald Trump tapped the Supreme Court’s emergency docket with remarkable success this term. During the administration’s first six months, the justices have sided with the federal government, to some extent, in almost every immigration case that has appeared on its fast-track calendar.

Characterized by its fast pace and limited briefing, the court’s emergency docket quickly became a centerpiece of the Trump administration’s legal strategy on immigration. Having promised to oversee mass deportations, the Trump administration has attempted to reinterpret the 14th Amendment citizenship clause, strip hundreds of thousands of people of legal permission to live in the United States, and expand immigration agents’ power to detain and deport migrants with minimal judicial oversight. Since late January, eight immigration cases involving the United States have reached the court’s emergency docket. All but one, Espinoza v. Bondi, in which the court let stand an immigration judge’s denial for a single Mexican family, involve the administration’s signature immigration policies.

Of the remaining seven immigration cases in which the federal government was a party, the justices denied the administration’s request in only two.

In April, the court declined, without any recorded dissents, to block a district court order directing the Department of Homeland Security to “facilitate” the return of Kilmar Ábrego García, a citizen of El Salvador who was wrongfully removed to that country. Ábrego García is currently detained in Tennessee pending criminal prosecution for charges that he illegally transported migrants in 2022.

Separately, in A.A.R.P. v. Trump, the court temporarily stymied the president’s attempt to invoke the Alien Enemies Act to target alleged members of Tren de Aragua, a gang that originated in Venezuela. The constitutional guarantee of due process requires more than 24 hours’ notice before removal, the court held over a dissent by Justice Samuel Alito, joined by Justice Clarence Thomas.

On the flip side, the justices have unequivocally sided with the Trump administration on four occasions involving immigration policies. In two, Noem v. Doe and Noem v. National TPS Alliance, the justices allowed DHS to move forward with plans to strip certain migrants of legal protections granted by prior administrations. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, disagreed with her colleagues in Noem v. Doe, about the Biden administration’s broad use of parole to benefit citizens of Cuba, Haiti, Nicaragua, and Venezuela, and she was the lone dissenter in Noem v. National TPS Alliance, concerning Temporary Protected Status for Venezuelan nationals.

Despite having slowed President Trump’s attempt to invoke the Alien Enemies Act in A.A.R.P., in Trump v. J.G.G. five justices sided with the administration’s position. A group of detained men successfully argued in the U.S. District Court for the District of Columbia that the president’s use of the 18th-century wartime law likely violated the Administrative Procedure Act, the federal law governing administrative agencies.

The majority of justices sided with the Trump administration in allowing challenges to potential deportation under the AEA to proceed only as writs of habeas corpus – that is, as a challenge to the legality of their detention. On a practical level, this means that lawsuits against AEA deportation must be brought in the judicial district in which the targeted individuals are detained. Like the El Valle Detention Facility in Raymondville, Texas, where the five individuals involved in J.G.G. were held, ICE’s largest detention sites are located in remote regions of the United States far removed from lawyers.

Though it was common to see dissents in the court’s immigration-related emergency docket decisions, J.G.G. is notable in that Justice Amy Coney Barrett joined Sotomayor, Jackson, and Justice Elena Kagan in disagreeing with the majority of their colleagues that habeas is the only means for challenging removal under the AEA.

Most recently, the Trump administration notched another clear victory at the court when the justices allowed Immigration and Customs Enforcement to carry out a policy broadening the use of third-country removals. Over a dissent by Sotomayor, joined by Kagan and Jackson, the court in Department of Homeland Security v. D.V.D. stayed a district court’s preliminary injunction blocking ICE from sending people to countries where they lack ties. Less than two weeks later, after Judge Brian Murphy of the U.S. District Court for the District of Massachusetts moved forward with plans to enforce an order remedying the federal government’s failure to abide by the initial preliminary injunction, the justices again sided with the administration, this time over a dissent by Sotomayor and Jackson.

The remaining policy-related case to reach the court’s emergency docket involved the blockbuster issue of birthright citizenship. In Trump v. CASA, the Justice Department asked the court to stay injunctions preventing the administration from carrying out the president’s executive order ending birthright citizenship – the guarantee of citizenship to virtually everyone born in the United States. Uncharacteristic for the court’s emergency docket, the justices heard oral arguments in CASA. The court’s opinion – which, at 119 pages, is similar in length to an opinion in a fully briefed and argued decision from the court’s merits calendar – largely ended in favor of the administration, though with an important caveat. Over dissents by Sotomayor, Kagan, and Jackson, the majority of justices barred district court judges from issuing universal injunctions, including the injunctions blocking the administration from implementing the executive order on birthright citizenship. Crucially, the justices did not address whether Trump’s birthright citizenship order was constitutional, opening the possibility that the court will have to weigh in on the legality of the executive order at some point in the not-too-distant future.

Given the Trump administration’s success on the emergency docket, it is likely that the justices will be asked to intervene in other cases involving immigration policies. There are over 50 immigration lawsuits pending against the administration. Though not all are fit for the court’s emergency docket, one likely contender involves an ongoing legal challenge to Secretary of Homeland Security Kristi Noem’s attempt to end Temporary Protected Status for Haitian citizens sooner than DHS designated while former President Joe Biden was in office. Because the justices have already backed the administration’s changes to TPS policy in Noem v. TPS Alliance, the government may rely on that case to bolster its defense of plans to terminate TPS for citizens of Honduras and Nicaragua as well.

In just six months, the court’s emergency docket has already proven valuable to the Trump administration’s immigration policy agenda. The court has limited the president’s power to tap the Alien Enemies Act but has eased the way for him to accomplish other aspects of his immigration plans. As the administration continues its attempts to expand the federal government’s capacity to detain and deport, the emergency docket is sure to retain its starring role in important immigration legal disputes.