Supreme Court Rejects Trump's Claim That He Can Summarily Deport Anyone He Describes As an 'Alien Enemy'

Although the Court lifted an order that temporarily blocked removal of suspected gang members, it unambiguously affirmed their right to judicial review.

The Supreme Court on Monday unanimously agreed that alleged members of the Venezuelan gang Tren de Aragua have a due process right to challenge President Donald Trump's use of the Alien Enemies Act (AEA) to summarily deport them. At the same time, the majority lifted a temporary restraining order (TRO) that blocked those deportations, saying Venezuelans detained under the AEA must file habeas corpus petitions in Texas, where they are being held, rather than seeking relief in the District of Columbia under the Administrative Procedure Act.

As the Court's unsigned order in Trump v. J.G.G. notes, "'it is well established that the Fifth Amendment entitles aliens to due process of law' in the context of removal proceedings," meaning "the detainees are entitled to notice and opportunity to be heard 'appropriate to the nature of the case.'" Specifically, the majority says, "AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

That order decisively rejects the Trump administration's attempt to deport suspected gang members without judicial review. Lee Gelernt, the American Civil Liberties Union lawyer representing five named plaintiffs who say they were mistakenly identified as Tren de Aragua members, said his clients were "disappointed" that they would "need to start the court process over again." But he described the Court's affirmation of their due process rights as "a huge victory" because the justices "rejected the government's position that it does not even have to give individuals meaningful advance notice so they can challenge their removal under the Alien Enemies Act."

The AEA applies only when "there is a declared war" between the United States and a "foreign nation or government" or when a "foreign nation or government" has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States." In those circumstances, it authorizes the president to deport "natives, citizens, denizens, or subjects" of that "hostile nation or government" who are at least 14 years old. In a March 15 proclamation, Trump implausibly argued that Tren de Aragua qualifies as a "foreign nation or government" and that its criminal activities within the United States amount to an "invasion or predatory incursion."

Gelernt's clients argue that Trump is misconstruing key terms in the statute. They also vehemently deny that they are members of Tren de Aragua, meaning they would not be covered by Trump's proclamation even if it were legal.

James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, considered those arguments at a March 15 hearing that was convened while the Trump administration was in the process of flying Venezuelan detainees to El Salvador, which had agreed to imprison them in its notorious Center for Terrorism Confinement (CECOT). In light of that imminent threat, Boasberg temporarily blocked the deportations while the case was pending. His TRO covered the five named plaintiffs and anyone else detained based on Trump's proclamation.

While urging a federal appeals court and Boasberg himself to lift that order, the government argued that Trump's use of the AEA involved political questions that were not subject to judicial review. Boasberg's TRO, they said, improperly interfered with the president's wide discretion under that law and his constitutional authority over national security and foreign policy. But by the time the case got to the Supreme Court, the Trump administration was explicitly conceding that "the AEA does not foreclose all opportunity to test the legality of alien-enemy detention."

Under the Supreme Court's 1948 decision in Ludecke v. Watkins, the government noted, "the question as to whether the person restrained is in fact an alien enemy" may be "reviewed by the courts." Detainees therefore "may be able to obtain narrow review of 'the construction and validity of the statute,'" focused on "questions like 'whether the detainee is an alien, and whether the detainee is among the 'natives, citizens, denizens, or subjects of the hostile nation' within the meaning of the Act." But the Trump administration's lawyers continued to insist that such questions must be raised in the context of habeas corpus petitions filed in the Southern District of Texas.

The Supreme Court agreed with the government on that point. "Regardless of whether the detainees formally request release from confinement," the majority says, "because their claims for relief 'necessarily imply the invalidity' of their confinement and removal under the AEA, their claims fall within the 'core' of the writ of habeas corpus and thus must be brought in habeas."

That conclusion is "suspect," Justice Sonia Sotomayor says in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, and the issue should not have been resolved on an emergency basis without full briefing and argument—a point that Jackson amplifies in a separate dissent. "Even the majority today agrees, and the Federal Government now admits, that individuals subject to removal under the Alien Enemies Act are entitled to adequate notice and judicial review before they can be removed," Sotomayor writes. "That should have been the end of the matter."

In "granting the Government extraordinary relief," Sotomayor says, the majority overlooks "the grave harm Plaintiffs will face if they are erroneously removed to El Salvador." She notes the "perilous conditions" at CECOT, where "detainees suffer egregious human rights abuses," including inadequate food and water, overcrowding that forces inmates to "sleep standing up," denial of communication with relatives and lawyers, and "intentional life-threatening harm at the hands of state actors."

That situation is all the more troubling, Sotomayor says, because "the Government takes the position that, even when it makes a mistake, it cannot retrieve individuals from the Salvadoran prisons to which it has sent them." She notes the case of Kilmar Abrego Garcia, a Salvadoran whose supporters say he was erroneously identified as a member of the MS-13 gang. The Trump administration concedes that Abrego Garcia was deported because of an "administrative error," in violation of a court order that barred his removal, but says it has no power to secure his release from CECOT.

Sotomayor also highlights "the Government's attempts to subvert the judicial process throughout this litigation." She notes that the Department of Homeland Security (DHS) "began moving Venezuelan migrants from Immigration and Customs Enforcement detention centers across the country to the El Valle Detention Facility in South Texas before the President had even signed" the proclamation that ostensibly authorized their immediate deportation. Those transfers, she says, "can be understood only as covert preparation to skirt both the requirements of the Act and the Constitution's guarantee of due process."

The evasion continued even after Boasberg scheduled a hearing to consider the challenge brought by Gelernt's clients. "Despite knowing of plaintiffs' claim that it would be unlawful to remove them under the Proclamation, the Government ushered the named plaintiffs onto planes along with dozens of other detainees, all without any opportunity to contact their lawyers, much less notice or opportunity to be heard," Sotomayor notes. "The Government's plan, it appeared, was to rush plaintiffs out of the country before a court could decide whether the President's invocation of the Alien Enemies Act was lawful or whether these individuals were, in fact, members of Tren de Aragua."

Gelernt's clients insisted they were not. The lead plaintiff "had no chance to tell a court that the tattoos causing DHS to suspect him of gang membership were unrelated to a gang," Sotomayor notes. "He avers that he is a tattoo artist who 'got [an] eye tattoo because [he] saw it on Google' and 'thought it looked cool.'" Another plaintiff likewise "was denied the chance to inform a court that the Government accused him of being an 'associate/affiliate of Tren d[e] Aragua' based solely on his presence at a party of strangers, which he attended at the 'insistence of a friend.'"

The latter detainee was already on a plane bound for El Salvador when Boasberg issued a TRO blocking deportation of the named plaintiffs. He "was subsequently retrieved from the plane by a guard who told him he 'just won the lottery.'" But even after Boasberg extended his TRO to protect everyone subject to Trump's proclamation, the deportations continued. At a hearing that evening, Sotomayor notes, Boasberg "directed that 'any plane containing' individuals subject to the Proclamation 'that is going to take off or is in the air needs to be returned to the United States.'" That did not happen. Boasberg is still trying to determine whether the Trump administration deliberately defied his order.

Justice Amy Coney Barrett, a Trump appointee, joined two parts of Sotomayor's dissent. Barrett agreed that "the Court's order today dictates, in no uncertain terms, that 'individual[s] subject to detention and removal under the [Alien Enemies Act are] entitled to judicial review' as to 'questions of interpretation and constitutionality' of the Act as well as whether he or she 'is in fact an alien enemy fourteen years of age or older.'" She also agreed it was "troubling" that the Court chose to "vacate summarily the District Court's order on the novel ground that an individual's challenge to his removal under the Alien Enemies Act" can only be brought via a habeas corpus petition and "must therefore be filed where the plaintiffs are detained"—a conclusion that Sotomayor describes as "dubious."

Another Trump nominee, Justice Brett Kavanaugh, wrote a concurring opinion that underlines the main thrust of the Court's order. "The Court's disagreement with the
dissenters is not over whether the detainees receive judicial review of their transfers," he writes. "All nine Members of the Court agree that judicial review is available. The only question is where that judicial review should occur."

Going forward, the Supreme Court's order requires that AEA detainees receive advance notice of their pending deportation so they can file habeas corpus petitions in Texas. Unlike Boasberg's TRO, which covered a provisionally certified class of Venezualans threatened with deportation under the AEA, any relief granted via habeas corpus will have to happen on a case-by-case basis. But the Supreme Court has made it clear that people who seek such relief cannot be deported based on nothing more than the government's allegation that they are members of Tren de Aragua.

As White House Press Secretary Karoline Leavitt sees it, such allegations are infallible. Anyone who questions them, she says, is shamefully maligning dedicated public servants and perversely "trying to cover for" members of "a vicious gang." But the dubious "alien enemy validation guide" that DHS has used to identify Tren de Aragua members, which includes iffy evidence such as tattoos, social media posts, and "associating" with "known" members, makes it plausible that at least some of the targets are victims of unjustified suspicion. Now they will have a chance to make that case—assuming they are not already imprisoned in El Salvador.

Despite that setback for Trump's plans, he portrayed the Supreme Court's intervention as a win. "The Supreme Court has upheld the Rule of Law in our Nation by allowing a President, whoever that may be, to be able to secure our Borders, and protect our families and our Country," Trump said in a Truth Social post on Monday evening. In his view, that made it "A GREAT DAY FOR JUSTICE IN AMERICA!"

In reality, the Supreme Court unambiguously rejected the premise that Trump has unfettered discretion to deport anyone he identifies as an "enemy alien." The majority agreed that Boasberg—whom Trump has condemned a "Radical Left Lunatic of a Judge, a troublemaker and agitator" who "should be IMPEACHED"—erred by relying on the Administrative Procedure Act to issue his TRO. But it concurred with Boasberg's conclusion that AEA detainees "are entitled to individualized hearings to determine whether the Act applies to them at all." So Trump is right that the Court's decision counts as a victory for justice—but not in the way he means.