Supreme Court Enjoins Summary Removal of Alleged Tren de Aragua Members under Alien Enemies Act

A majority of the justices seem unconvinced the Administration was prepared to provide the process that was due. Justices Alito and Thomas dissent.

This afternoon, the Supreme Court granted an application for an injunction against the federal government barring the summary removal of Venezuelan nationals alleged to be members of Tren de Aragua (TdA) under the Alien Enemies Act. By a 7-2 vote, the justices concluded that the detainees were entitled to greater process than they had been provided, and that the U.S. Court of Appeals for the Fifth Circuit erred in dismissing the detainee's claims for lack of jurisdiction. The Court further treated the application for an injunction as a petition for certiorari, granted the petition, and remanded the case back to the U.S. Court of Appeals for the Fifth Circuit for further proceedings.

The opinion for the Court in A.A.R.P. v. Trump was per curiam (the fifth such opinion this term). Justice Alito dissented, joined by Justice Thomas, arguing that the Court lacked jurisdiction and, even assuming jurisdiction, the applicants failed to satisfy the requirements for injunctive relief. Justice Alito also objected to granting certiorari before judgment given the lack of lower court decisions on the merits.

Here's how the opinion sets up the questions before the Court:

The President has invoked the Alien Enemies Act (AEA), Rev. Stat. §4067, 50 U. S. C. §21, to remove Venezuelan nationals who are members of Tren de Aragua (TdA), a designated foreign terrorist organization. See Presidential Proclamation No. 10903, 90 Fed. Reg. 13033 (2025). Applicants are two detainees identified as members of TdA and a putative class of similarly situated detainees in the Northern District of Texas. All of the alleged TdA members in the putative class are currently being held in U. S. detention facilities. In the application before the Court, the detainees seek injunctive relief against summary removal under the AEA.

In recounting the facts, the Court highlights how close it appears some of the applicants  came to being deported without adequate process. The way these facts are recounted suggests that at least some of the justices are increasingly skeptical of the Justice Department's representations and the extent to which administration attorneys are attempting to comply with court orders and legal requirements in good faith. (It is no accident the opinion makes reference to Abrego Garcia, and the federal government's representation that no federal court has jurisdiction to fix the federal government's error in deporting him to El Salvador.) This would seem to confirm that a majority of the justices are no longer willing to automatically grant the presumption of regularity to the Trump Administration on deportation-related matters, and this may affect the ability of the Solicitor General to advance Administration positions in other cases.

As in several other recent cases, the Court's opinion highlights its disagreement with the Fifth Circuit.

The Fifth Circuit erred in dismissing the detainees' appeal for lack of jurisdiction. Appellate courts have jurisdiction to review interlocutory orders that have "the practical effect of refusing an injunction." . . . A district court's inaction in the face of extreme urgency and a high risk of "serious, perhaps irreparable," consequences may have the effect of refusing an injunction. . . . Here the District Court's inaction—not for 42 minutes but for 14 hours and 28 minutes—had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm. Accordingly, we vacate the judgment of the Court of Appeals.

The Court then goes on to reiterate the basic constitutional point that Due Process is guaranteed to persons, and not merely citizens or those lawfully present in the country.

"[T]he Fifth Amendment entitles aliens to due process of law in the context of removal proceedings." Trump v. J. G. G., 604 U. S. ___, ___ (2025). . . "Procedural due process rules are meant to protect" against "the mistaken or unjustified deprivation of life, liberty, or property." . . . We have long held that "no person shall be" removed from the United States "without opportunity, at some time, to be heard." . . . Due process requires notice that is "reasonably calculated, under all the circumstances, to apprise interested parties" and that "afford[s] a reasonable time . . . to make [an] appearance." . . . Accordingly, in J. G. G., this Court explained—with all nine Justices agreeing—that "AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief " before removal. , , ,  In order to "actually seek habeas relief," a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.

None of this means the applicants will not ultimately be removed from the country, however. Rather, any removal will only come after they have received the process to which they are due. As the Court notes further:

To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated. . . . We did not on April 19—and do not now—address the underlying merits of the parties' claims regarding the legality of removals under the AEA. We recognize the significance of the Government's national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution. . . .

And as if to make the point clear, the opinion ends noting "The Government may remove the named plaintiffs or putative class members under other lawful authorities."

As for what comes next, the Court explains:

The judgment of the Fifth Circuit is vacated, and the case is remanded to the Fifth Circuit. In resolving the detainees' appeal, the Fifth Circuit should address (1) all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named plaintiffs' underlying habeas claims that the AEA does not authorize their removal pursuant to the President's March 14, 2025,Proclamation, and (2) the issue of what notice is due, as to the putative class's due process claims against summary removal. The Government is enjoined from removing the named plaintiffs or putative class members in this action under the AEA pending order by the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

Justice Kavanaugh also wrote a separate concurrence, agreeing with the Court's decision to grant the injunction, but disagreeing with the Court's decision to remand the case back to the Fifth Circuit. In Justice Kavanaugh's view, the Court should have granted certiorari, ordered expedited briefing, and resolved the underlying legal issues.