In an unsigned order on the court’s emergency docket, the five-justice majority nixed a temporary restraining order by the lower courts on jurisdictional and procedural grounds. It held that habeas petitions, not a Section 1983 lawsuit, were the proper mechanism to challenge the plaintiffs’ detention. “The detainees are confined in Texas, so venue is improper in the District of Columbia,” the court held.
Justice Ketanji Brown Jackson wrote separately to decry the majority’s “fly-by-night approach” as dangerous. She also made a pointed reference to the court’s past sign-offs on abusive practices. “At least when the court went off base in the past, it left a record so posterity could see how it went wrong,” she wrote, citing Korematsu v. United States, the court’s infamous 1944 ruling on Japanese American internment.
The case involves five unnamed detainees currently held by the U.S. government. In March, Trump issued an executive order that invoked the Alien Enemies Act, a Founding-era law that was part of the Alien and Sedition Acts, to remove any Venezuelan nationals from the country who are alleged to be members of Tren de Aragua, an international criminal organization. The AEA has been largely moribund for the last 200 years.
The detainees sued the Trump administration to stop their removal under the AEA. Their lawyers noted that the government’s invocation of the AEA is almost certainly illegal under the “plain text” of the statute, which allows it to be invoked only after a “declared war” or an “invasion or predatory incursion” by a “foreign nation or government.”
The Justice Department, for its part, railed against the lower courts for interfering with the removals. “This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country—the President, through Article II, or the Judiciary, through TROs,” it claimed in its request for the justices to intervene. “The Constitution supplies a clear answer: the President. The republic cannot afford a different choice.”
“Regardless of whether the detainees formally request release from confinement, 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,” the justices in the majority wrote, quoting from precedent. While the order is unsigned, the lineup of the dissenting justices means that the majority consists of Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
“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 court explained. “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.”
“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,” Justice Sonia Sotomayor wrote in her dissent. “Plaintiff J. G. G., for example, had no chance to tell a court that the tattoos causing DHS to suspect him of gang membership were unrelated to a gang.”
The most concerning aspect is the fate of the dozens of detainees who were sent to El Salvador’s CECOT prison, where the Salvadoran government is indefinitely detaining them. There are multiple reports of detainees being sent there without any proven TdA connections or Venezuelan nationality. But there is no federal district court for El Salvador where a habeas petition could be filed, and in another case, the Trump administration is disavowing any ability whatsoever to free prisoners from the Salvadoran-run facility.
Sotomayor, joined by Justices Elena Kagan, Jackson, and (in part) Barrett, rejected the court’s reasoning on habeas claims on both the merits and on its hasty and slapdash approach to the question. Sotomayor warned that the court had reached its conclusion “without oral argument or the benefit of percolation in the lower courts, and with just a few days of deliberation based on barebones briefing.”
Perhaps the most important portion of Sotomayor’s dissent, however, came when she reiterated the notice requirement for future AEA removals. She noted that all nine justices agreed on the due-process requirement and said that future failures to provide it would amount to defiance of the high court itself. “To the extent the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court,” she emphasized.
Whether that will deter the Trump administration from engaging in future evasive tactics is unclear. The government’s approach to this case is shaped by its willful efforts to evade and undermine the judicial branch and that branch’s ability to ensure that the government follows the law and the Constitution. Previous generations of the Supreme Court held litigants ranging from Southern segregationists to President Richard Nixon accountable for their defiance or near-defiance of federal court orders. This time around, the conservative majority has rewarded it.
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