Constitutional attorney Alan Dershowitz said Wednesday the U.S. Supreme Court would issue a “divided” decision on President Donald Trump’s efforts to deport members of the Venezuelan prison gang Tren de Aragua (TdA).
A divided three-judge panel from the United States Court of Appeals for the District of Columbia Circuit upheld a temporary injunction by United States District Judge James Boasberg of the District of Columbia issued March 15 that ordered the Trump administration to turn around two planes carrying members of the Venezuelan gang to El Salvador. Dershowitz said the Supreme Court would likely hear the case, but that neither side would claim a total victory.
“The United States Court of Appeals for the D.C. Circuit Court, on which I clerked a hundred years, ago, not quite put 60 years ago, 62 years ago, something like that, affirmed the lower court decision not to permit any more airplane flights with deportees to go to El Salvador,” Dershowitz said. “The decision was two to one with the Trump-appointed judge dissenting on procedural grounds and the other two judges saying ‘Yes, you can. You can keep that stay in effect, or nobody gets deported anymore in the way that these Venezuelans got deported.’”
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“The dissenting view was on the ground that this case should not be before the D.C. court at all. It should be before the Texas court. That’s the last place in the United States that the deportees were before they were sent to El Salvador,” Dershowitz said. “So that’s the status there.”
Trump issued several executive orders to address illegal immigration and border security, including designating Mexican drug cartels, TdA and MS-13, an El Salvadoran prison gang, as foreign terrorist organizations upon taking office Jan. 20. Trump invoked the Alien Enemies Act of 1798 to speed up the deportation of TdA gang members March 15.
“Ultimately, the case will be decided on the merits, and eventually I think it will probably get to the United States Supreme Court. I think the power of the president to order deportation with due process will be upheld,” Dershowitz said.
“So, my prediction is a divided one. Substantively, the power of the president will be upheld,” Dershowitz said. “Procedurally, they’ll have to get due process, and the remaining question is: Do federal courts have the power to enforce due process against the wishes of the executive, or is this purely an executive function? The Congress could pass a law removing jurisdiction from the federal district court on issues like this, but they haven’t.”
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