A Conservative Judge Set Up a Supreme Court Showdown Over Trump's El Salvador Gulag
A Conservative Judge Set Up a Supreme Court Showdown Over Trump’s El Salvador Gulag
By Dahlia Lithwick and Mark Joseph Stern
May 02, 20251:45 PM
On Thursday, U.S. District Judge Fernando Rodriguez Jr. dealt a major defeat to Donald Trump, shooting down the president’s invocation of the Alien Enemies Act of 1798 to summarily deport Venezuelan migrants. In a meticulous opinion, Rodriguez found that the statute could not be wielded against these individuals “as a matter of law,” applying his decision to every migrant currently confined in his district, the Southern District of Texas. He also permanently blocked the government’s plan to transfer the men to a notoriously brutal El Salvadoran prison based on dubious allegations that they are members of a gang.
Dahlia Lithwick and Mark Joseph Stern discussed the ruling, its impact, and its shortcomings on this week’s episode of Amicus. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: It feels like a landmark moment and a crushing defeat for the Trump administration. I want to note—even though judges hate it when we do this—that Judge Rodriguez is himself a Trump appointee and a conservative and a Federalist Society member. He’s no flaming liberal. And this is the first time we’ve gotten a ruling on the merits that says “You cannot use this law in this way,” right?
Mark Joseph Stern: This is the first time a court has issued a definitive decision and a permanent injunction saying that the Alien Enemies Act simply cannot be used in this way. And what Rodriguez did is very straightforward. He quoted the statute, which applies, as relevant here, only to “any invasion or predatory incursion” against U.S. territory “by any foreign nation or government.” The judge analyzes these terms as they were used in 1798, when the statute was enacted, looking at dictionary definitions and common usage. And he concluded that these are words that describe either a military force or an “organized, armed force”—they do not apply to alleged members of a gang who are accused of committing occasional acts of violence. That’s not an armed militia invading the nation; that’s just criminals doing criminal things.
Rodriguez also pointed out that Trump’s proclamation actually makes no reference to the existence of any organized, armed group trying to conquer the country. It just isn’t there. So he effectively used Trump’s own poorly drafted declaration against him.
This is a sort of funny opinion because, on the one hand, it does represent a beatdown with the textualism stick. But the ruling itself is not a searing piece of legal writing. It’s actually pretty bloodless, even cold. It’s a very dispassionate piece of jurisprudential writing. I wonder what you think animates the choice to approach it this way.
First of all, this judge is a conservative, he’s a Federalist Society member, and, I think, this is how he does law. He’s not a jurist filled with passion or outrage. This opinion is such hardcore textualism that it includes an appendix with Rodriguez’s own extensive research featuring dozens of historical uses of the terms in the Alien Enemies Act—including letters from George Washington, James Madison, and Thomas Jefferson—to show that the language of the statute was always used in connection to a military invasion and never used in connection to anything like gang violence. He’s showing readers, and higher courts: It isn’t just me saying that the terms of the Alien Enemies Act could not possibly fit here. This is James Madison, the father of the Constitution. It’s certainly the kind of opinion you want to write when you are playing with high stakes and you want this Supreme Court to affirm you, as every district court judge does.
More:
https://www.removepaywall.com/search?url=https://slate.com/news-and-politics/2025/05/supreme-court-analysis-trump-el-salvador-gulag.html