The Supreme Court on Friday afternoon continued to spell out new legal protection for potentially thousands of migrants against being swiftly deported by the Trump Administration with no legal safeguards.  It did so without waiting for lower courts to decide those rights first.

In a 7-to-2 decision, the Court ruled that some 176 Venezuelans that have been facing imminent transfer to a notorious prison in El Salvador must be given advance notice – 24 hours is not enough, it said – before they can be loaded onto planes and sent off.

This marked the first time in the ongoing constitutional saga over Trump mass deportation policies that the Court actually issued a final decision on a key point without waiting for lower courts to take final positions on it.  The ruling guaranteed a constitutional right to fair procedures, including time to pursue those protections, for migrants at risk of swift deportation.

The decision sent to a federal appeals court that is overseeing deportation cases in Texas, where the 176 Venezuelans are now being held, an order to decide two issues:

• Does the President have the authority to rely upon the Alien Enemies Act, a 1798 law formerly used only during wartime, in deporting migrants believed to be members of a violent foreign gang.
• Beyond notice of potential deportation that must be given at least 24 hours in advance, how much beyond a day must notice be given and what must the migrants be told as to how they can challenge in court the basis for their deportation as individuals or as one of the group of 176.

So far, lower courts have split on whether the President and his aides may use the 18^th Century law for current deportations, but most of those courts have tentatively said no.  The lower courts are also pondering the scope of the migrants’ procedural rights before they can be sent to another nation for captivity.

Friday’s ruling amounted to a gesture of support for the lower courts that have been taking at least temporary steps to protect the migrants.

The Court majority, in the new opinion, noted evidence that captivity at the El Salvador prison may be for the rest of the migrants’ lives.  That prospect, it said, means that the migrants’ interests in fair procedures “are particularly weighty,” so a mere one-day notice without information on how to make a court challenge “does not pass muster.”

Because the Court’s new order will probably take some time to be implemented in the federal appeals court to which it was sent, the case may not return to the Supreme Court for weeks if not months.  The Court did specify, though, that the lower court should move forward “expeditiously.” Whatever time it takes for those courts to act, and for the issue to return later to the Supreme Court, the Friday order means that none of the 176 Venezuelans in this specific case can be deported in the meantime.

This action seems like a clear signal to lower courts to grant similar rights to other individuals who may be facing imminent deportation by the Trump Administration.

One of the Justices among the seven in the majority, Brett M. Kavanaugh, wrote a separate opinion arguing that the Court should not have returned the case to lower courts for further review but instead should have taken on the case itself for a final ruling, presumably within the next several weeks.  None of the others in the majority supported that idea, however.

The majority opinion was issued “By the Court” (“Per Curiam,” in Latin), meaning that it probably  spoke for the seven Justices who apparently joined it.  The others in the majority appeared to be Chief Justice John G. Roberts, Jr., and Justices Amy Coney Barrett, Neil M. Gorsuch, Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor.  If any of those six had some disagreement with any part of the ruling, they did not express it.

Justice Samuel A. Alito, Jr., wrote a strongly worded 14-page dissenting opinion, arguing that the Court had no authority to take the action it took and accused it of reaching out to decide key issues as if it were a basic trial court at the beginning of the judicial process, rather than an appeals court at the end of the judicial process.  Alito even ridiculed one of the majority’s legal findings as being based on nothing more than a law-review article, rather than some precedent from the Court’s own work.

While the new order does protect migrants facing possible removal from the country based on the President’s power under the old 18^th Century law, the order specified that it had nothing to do with the government’s power to deport any of the Venezuelans under federal immigration laws.  That process, though, takes considerably longer than what President Trump was trying to do under the Alien Enemies Act; that process also gives the migrants a clear chance to contest the basis for the attempt to deport them.

The Trump team turned to the old law precisely because, as they interpreted it, they could arrest, detain and deport any individual that officials considered to be a dangerous person who should not remain in the U.S.  Turning to that law was in keeping with the view of at least some Administration officials that legal safeguards should not apply to non-citizens who entered the country illegally, as was the case with the Venezuelans accused of having gang connections.