Harvard Law professor emeritus Alan Dershowitz said Tuesday on Newsmax that the Supreme Court's recent ruling affirms the Trump administration's authority to decide who can remain in the U.S. so long as due process is upheld.
Dershowitz added that the Supreme Court's latest ruling clearly affirms the executive branch's power to control deportation decisions, provided constitutional safeguards are followed.
"Well, it is a win on the substantive power of the executive to decide who stays in the country and who is deported," Dershowitz said during an appearance on "The Record With Greta Van Susteren."
"The Supreme Court is going to split the difference into substance and procedure. It's going to give the executive the power substantively to decide who stays and goes. But it's going to demand, consistent with the 14th Amendment, that due process be observed."
The court on Monday ruled 5-4 to throw out a lower-court decision that had blocked the deportation of men alleged to be members of the Venezuelan gang Tren de Aragua. The ruling clears the way for the Trump administration to use the Alien Enemies Act — a rarely invoked wartime-era law — to deport individuals, as long as detainees are given legal avenues to challenge their removal, NBC News reported.
Dershowitz said that while the administration has the authority to act, it must do so constitutionally.
"The president can do it, but the president has to do it right," he said. "And we're going to see that carry through in decisions involving deportation of students as well."
When asked whether detainees have a right to counsel, Dershowitz said, "Well, they do have right to counsel but don't have the right to appointed counsel. But they can have their lawyers challenge and protest."
"The real question is when can they challenge: before they're actually deported, or can they post facto challenge after they've been deported?
"This is a work in progress. It's 5 to 4, and I think we're going to see case-specific and fact-specific decisions coming down," he said.
"Don't worry about right to counsel. Every one of these people will get an ACLU lawyer; I guarantee you that."
On Monday, Chief Justice John Roberts agreed to pause a midnight deadline for the Trump administration to return a Maryland man mistakenly deported to a notorious prison in El Salvador.
The temporary order came hours after a Justice Department emergency appeal to the Supreme Court arguing U.S. District Judge Paula Xinis overstepped her authority when she ordered Kilmar Abrego Garcia returned to the United States.
The White House has described Abrego Garcia's deportation as an "administrative error" but has also cast him an MS-13 gang member. Attorneys for Abrego Garcia said there is no evidence he was in MS-13.
Addressing concerns about deportations based on suspected gang affiliations, Dershowitz said, "You have to find out whether they — this guy says he's not a gang member, that he was wearing a hat. And the question is going to be: Who has the burden of proof?
"Does he have the burden of proving that he's in the country lawfully? Yes. Does he have the burden of proving that he was not a gang member? No," he said.
"The Supreme Court will confirm the executive's power to decide who stays and leaves but will make it difficult for that power to be enforced by insisting that due process be followed."
Information from The Associated Press was used in this report.
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