Rights and Wrongs of the Supreme Court's Ruling in the Alien Enemies Act Case

The Supreme Court oveturns lower court decisions temporarily barring AEA deportations, but also emphasizes that detainees are entitled to due process, and that AEA deportations are subject to judicial review.

The Supreme Court. (NA)

 

Tonight's Supreme Court ruling in Trump v. JGG is a mixed bag. On the one hand, it overturns lower court rulings temporarily barring deportations under the Alien Enemies Act. But it also makes clear that migrant detained for deportation under the AEA are entitled to due process, and that the president's invocation  of the Act is subject to judicial review. I go over the crucial issues at stake in the AEA litigation here, here, and here.

A closely divided 5-4 majority (with Justice Amy Coney Barrett joining the three liberal justices in dissent), ruled that the case should have been tried in Texas (where the detained Venezuelan migrants are now held), rather than in Washington DC, because habeas corpus cases must be heard at the location of detention.

I am not expert on these kinds of venue issues, and therefore cannot say much about them. But it does seem to me the majority got this wrong, for reasons outlined in Justice Sotomayor's dissent. See also this analysis by Lee Kovarsky, a leading academic expert on habeas.

In a detailed discussion of tonight's ruling, Prof. Steve Vladeck argues that limiting the detainees' options to habeas corpus challenges will make it much harder for them to litigate their cases, in part by preventing systematic remedies, as opposed to ones limited to individual habeas petitioners. Justice Sotomayor eloquently expresses similar concerns in her forceful dissent. They may be right. But much depends on whether AEA detainees can file habeas class actions. If the answer is yes, systematic remedies will be available, and individual migrants won't have to all litigate their cases separately. The ACLU and other public interest groups are likely to help the detainees file such a class action. Habeas class actions are permitted in at least some immigration contexts.  I lack the expertise to assess whether they can or will be used here. But I flag this issue as a crucial one to consider.

While the Trump Administration succeeded in getting the lower-court rulings vacated, it suffered a potentially important setback by virtue of the Court's ruling that migrants targeted for deportation under the AEA are entitled to due process:

"It is well established that the Fifth Amendment entitles aliens to due process of law" in the context of removal proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). So, the detainees are entitled to notice and opportunity to be heard "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). More specifically, in this context, 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.

While I differ with much of what Josh Blackman says in his post about the case, he is right to describe this part of the ruling as "a very quiet defeat for the Trump Administration, which sought to spirit the aliens away without any hearing." How big a defeat it is may in part depend on exactly what qualifies as "a reasonable time" and "a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

The majority also holds that judicial review is available with respect to the applicability of the AEA, which only allows detention and deportation in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government":

Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is 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." Ludecke, 335 U. S., at 163−164, 172, n. 17.

It seems obvious that "questions of interpretation and constitutionality" include the issues of whether there is an "invasion" or "predatory incursion" going on, and whether the Tren de Aragua drug gang qualifies as a "foreign nation or government" (Trump's invocation of the AEA is limited to Venezuelans who are members of that organization). This undercuts the administration's claims that all these issues are "political questions not subject to judicial review. In earlier writings about these issues, I have emphasized that the meaning of "invasion" in the AEA tracks the meaning of the same term in the Constitution, which is limited to acts of war, not mere illegal migration or drug smuggling.

Steve Vladeck suggests that the transfer of the litigation to Texas will benefit the Trump Administration, because the federal judges in the Fifth Circuit are generally more conservative than elsewhere. He is likely right about that. But it's worth noting that the Fifth Circuit has twice ruled that illegal migration and drug smuggling do not qualify as "invasion" under the Constitution (see my discussion here and here), which suggests a similar interpretation applies to the use of invasion in the AEA (enacted just a few years later). One of these cases, was later overturned on other grounds by the en banc Fifth Circuit.

In that en banc case, prominent conservative  Fifth Circuit Judge James Ho wrote a badly flawed concurring opinion arguing that illegal migration does qualify as "invasion" (see my critique here). But, significantly, none of the other 17 Fifth Circuit judges joined him. That suggests the argument has little, if any, support from his colleagues.

In sum, tonight's Supreme Court ruling is very much a mixed bag. The legal battle over the Alien Enemies Act will continue.