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