The Bus Was Real: Justice Alito’s Dissent in A.A.R.P. v. Trump Collides with the Record
In his dissent from the Supreme Court’s emergency injunction in A.A.R.P. v. Trump, Justice Alito warned against acting “in the middle of the night” on “dubious factual support.” He claimed the Court had rushed into action without evidence that detainees faced imminent removal under President Trump’s controversial invocation of the Alien Enemies Act (AEA). But his dissent reads as if Trump v. J.G.G., decided just twelve days earlier by the same Court, had never happened.
It did. And the record in J.G.G. provides exactly the evidence Alito insists was missing.
Deportation Had Already Begun
Justice Alito questions whether “the applicants were in imminent danger of removal,” noting that “[t]he papers before us… provided little concrete support.” But in J.G.G., both the District Court and Justice Sotomayor’s dissent document how dozens of Venezuelan detainees were already placed on buses and planes—some flown to El Salvador before courts could intervene.
One detainee, G.F.F., was already in the air when the judge’s order halted removals. He was pulled from the plane only after a guard told him, “you just won the lottery.” Others were not so lucky. Many were delivered directly into El Salvador’s CECOT prison, where they now endure conditions described as “life-threatening” and “inhuman”.
This wasn’t speculative harm. It was active removal, executed in secrecy and under cover of a yet-unpublished Proclamation. That context renders Alito’s complaint—that the Court lacked “concrete support” for imminent harm—not just inaccurate, but dangerously dismissive.
The Precedent He Ignored
Alito’s argument in A.A.R.P. rests in part on the claim that class-wide relief in habeas proceedings is unprecedented. But Trump v. J.G.G. directly addressed the same legal terrain—Venezuelan nationals, the same Proclamation (No. 10903), and the same disputed application of the AEA.
In J.G.G., the Court vacated district court TROs not because no harm was occurring, but on venue and procedural grounds—insisting that challenges to AEA removal must be brought in habeas, and only in the district of confinement. Yet even in granting that relief to the government, the Court affirmed two crucial principles:
Due Process applies: Detainees “must receive notice… in such a manner as will allow them to actually seek habeas relief… before such removal occurs”.
Judicial review is required: Even under the Alien Enemies Act, courts must examine whether someone “is in fact an alien enemy” and whether the law is being lawfully applied.
Justice Alito’s dissent in A.A.R.P., by contrast, makes no mention of these holdings. Instead, it implies that the Court lacked any justification to intervene—when in fact, it had already acknowledged the government’s failure to guarantee due process days earlier.
The Rule of Law in the Midnight Hour
The Alien Enemies Act, first passed in 1798, has been used sparingly in U.S. history—during the War of 1812, World War I, and World War II. Trump’s March 2025 proclamation marks the first time it has been invoked outside wartime, and the first time used to justify mass deportations to a foreign-run prison without trial or hearing.
Justice Sotomayor’s J.G.G. dissent describes what followed as “covert preparation to skirt… the Constitution’s guarantee of due process.” Individuals were rounded up before the proclamation was published. Some were accused of gang affiliation on the basis of tattoos or mere party attendance. And when lawyers filed suit to halt deportations, planes were loaded before hearings could even begin.
Against this backdrop, Alito’s proceduralist critique—that the Supreme Court intervened too quickly, or without waiting for the government’s brief—feels like judicial abstraction detached from lived reality.
Closing the Loop
Legal scholarship depends on fidelity not only to precedent but to facts. When Justice Alito warns of speculative harms but fails to acknowledge that the Court had already been briefed, just 12 days earlier, on active deportations to a foreign prison, it invites a kind of procedural gaslighting.
The bus was real.
So were the planes. So were the detainees locked in CECOT. That is why the emergency relief in A.A.R.P. was not just justified—it was necessary.