Supreme Court to Rule by Jan. 12 on Challenge to Mass Deportation Program, Sources Say

The Court's Timeline

The Supreme Court is expected to rule by Jan. 12 on an emergency administration appeal seeking to revive a mass deportation program halted by a federal judge in Washington, according to two clerks familiar with the court's deliberations. The justices heard informal arguments on Jan. 7 in the case, which challenges a nationwide injunction issued Dec. 29 by U.S. District Judge Amit Mehta. The program, authorized under Section 212(f) of the Immigration and Nationality Act, would allow federal immigration officers to bypass standard removal hearings for certain nationals from designated countries. The administration contends the program is necessary to address what it describes as a foreign national security threat involving individuals present in the United States without legal status.

Justice Samuel Alito, who handles emergency matters from the D.C. Circuit, referred the application to the full court on Jan. 3 after the U.S. Court of Appeals for the D.C. Circuit declined to stay the injunction, the clerks said. The court has not yet scheduled formal oral arguments, and the justices are reviewing sealed materials submitted by the Department of Homeland Security that describe the criteria used to identify individuals covered by the program. One clerk said the materials, filed under seal on Jan. 5, run to more than 400 pages and include classified threat assessments from the FBI and the Office of the Director of National Intelligence.

The administration's emergency application asks the justices to narrow the scope of the injunction or lift it entirely by the close of business on Monday, Jan. 12. A second clerk said Chief Justice John Roberts and Justice Brett Kavanaugh appeared most receptive to the administration's national security arguments during the Jan. 7 conference, while Justice Sonia Sotomayor and Justice Ketanji Brown Jackson pressed for additional procedural safeguards. The clerks cautioned that the court's internal deliberations remain fluid and that a decision could slip to Jan. 13 if the justices decide to issue a signed opinion rather than a brief order.

Arguments and Lower Court Ruling

A lawyer who argued the case for the plaintiffs said the administration asked the justices to allow enforcement to resume while the case proceeds through the appeals process. The plaintiffs, a coalition of immigration advocacy groups and several U.S. citizens with family members in the affected categories, argue the program violates the Fifth Amendment's due process protections and the Administrative Procedure Act. Judge Mehta's Dec. 29 order blocked enforcement nationwide and required the Department of Homeland Security to maintain records of all individuals previously identified for removal under the program. The order came after a three-day bench trial that began Dec. 15 in the U.S. District Court for the District of Columbia.

Court filings show the administration identified approximately 1.2 million individuals as potentially eligible for expedited removal under the policy. The designated countries include Venezuela, Cuba, Nicaragua, Haiti, and Afghanistan, according to a government declaration filed under seal. The plaintiffs contend the program relies on nationality-based classifications that trigger heightened scrutiny under the Equal Protection Clause. They also argue that the administration failed to provide the 30-day notice and comment period required by the Administrative Procedure Act before implementing the policy on Nov. 18.

The administration's legal defense rests primarily on Section 212(f) of the Immigration and Nationality Act, which grants the president broad authority to suspend the entry of aliens whose presence would be detrimental to U.S. interests. Government lawyers told the court in a Dec. 22 brief that the provision also authorizes expedited removal of individuals already in the country if they match the categories designated by the president's Nov. 14 proclamation. The plaintiffs dispute that reading, noting that the Supreme Court has never squarely held that Section 212(f) applies to aliens already physically present in the United States.

Twelve states filed an amicus brief supporting the administration on Jan. 6, arguing that the injunction interferes with the federal government's core authority over foreign affairs and border security. Texas Attorney General Ken Paxton signed the brief, which cites the Supreme Court's 2018 decision in Trump v. Hawaii and its 2012 ruling in Arizona v. United States. A separate amicus brief filed by former national security officials on Jan. 5 urged the court to defer to the executive branch's assessment of the threat. The plaintiffs responded with a Jan. 6 filing that included declarations from three former immigration judges who said the program would eliminate meaningful review for asylum seekers with credible fear claims.

What Happens Next

A Justice Department official with knowledge of the filing said the administration will file a formal merits petition if the court rules against the emergency application, setting up a full briefing schedule that could extend into the court's April argument session. The official said the department had prepared a cert petition for filing by Jan. 15 and that Solicitor General Elizabeth Prelogar's office has cleared the document for final submission. Two congressional aides briefed on the plan said House Judiciary Committee staff have scheduled a hearing for Jan. 14 to examine the legal basis for the program, while the Senate Homeland Security Committee expects a classified briefing from DHS officials on Jan. 16.

The aides said the administration has also notified the Senate Homeland Security Committee that it intends to request supplemental appropriations for immigration enforcement by Jan. 20. The request is expected to total $3.4 billion and would fund detention beds, immigration judge teams, and transportation contracts for removal flights. If the Supreme Court grants the stay, immigration attorneys expect enforcement actions to begin within 72 hours at field offices in Atlanta, Chicago, and Los Angeles. The American Civil Liberties Union has already filed template motions in federal courts in those cities seeking individual stays of removal for affected clients.

The case carries significant stakes for the balance of executive power in immigration enforcement. A ruling for the administration would mark one of the broadest applications of Section 212(f) since the Supreme Court upheld the travel ban in Trump v. Hawaii in 2018. A ruling against the administration would leave in place a nationwide injunction and likely force the government to restart removal proceedings for hundreds of thousands of individuals. Watch for the court's order on Monday, Jan. 12, and for any separate statement from Justices Clarence Thomas or Neil Gorsuch, who have previously criticized nationwide injunctions in immigration cases.