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