Supreme Court Upholds DJT’s Use of Alien Enemies Act

The Supreme Court vacated temporary restraining orders by federal District Court Judge James Boasberg, which expanded the class of people expelled to El Salvador under the Alien Enemies Act 15 March 2025 and ordered them returned to the USA to undergo due process.

A TRO is not normally appealable. The case had not progressed to an injunction. The government already appealed on an emergency basis. The Court of Appeals affirmed Boasberg’s orders. Without waiting for the appeal ruling to be issued, the government escalated to the Supreme Court.

The five men among the Justices sided with the government, giving it more than it asked for in an unsigned opinion.

The lawsuit on this issue was filed on behalf of five Venezuelans as a “class action” by the American Civil Liberties Union and Democracy Forward. In a class action, a handful of plaintiffs represent a larger group of people in a similar position.

The Supreme Court went beyond ruling that the government can continue to use the 1798 Alien Enemies Act to round up immigrants and send them to third countries. The only nugget of hope the Court threw to people targeted this way was that from now on, such people must be given notice and an opportunity to challenge their removal. The Court prohibited them from doing so through class actions. They must seek relief from courts individually, case by case, each with their own habeas corpus petition.

The Court specified the petition must be filed where detained individuals are held. Whenever the government detains someone in a jurisdiction where courts tend to be somewhat liberal, it has become common practice to quickly rush detainees to a detention center in a jurisdiction where courts are more harsh. During transport, it is also common for the Immigration and Customs Enforcement computer system to “disappear” them to their lawyers and family members cannot find out where they are until after they are in the distant jurisdiction.

It is not clear what will happen to the approximately 260 Venezuelans who were taken to the notorious CECOT prison in El Salvador without notice and without an opportunity to file a habeas corpus petition.

The principal dissent was penned by Justice Sonia Sotomayor, which included:

Critically, even the majority today agrees, and the Federal Government now admits, that individuals subject to removal under the Alien Enemies Act are entitled to adequate notice and judicial review before they can be removed. That should have been the end of the matter. Yet, with “barebones briefing, no argument, and scarce time for reflection,” the Court announces that legal challenges to an individual’s removal under the Alien Enemies Act must be brought in habeas petitions in the district where they are detained.

The Court’s legal conclusion is suspect. The Court intervenes anyway, granting the Government extraordinary relief and vacating the District Court’s order on that basis alone. It does so without mention of the grave harm Plaintiffs will face if they are erroneously removed to El Salvador or regard for the Government’s attempts to subvert the judicial process throughout this litigation. Because the Court should not reward the Government’s efforts to erode the rule of law with discretionary equitable relief, I respectfully dissent.

Justice Ketanji Brown Jackson wrote:

The majority decision is a “four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.”

[S]urely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary.

All of the female Justices concurred with that theme.

Justice Sotomayor made it clear that the Court’s majority did not spend much thought on what is truly appropriate and workable as due process under the circumstances at issue:

Against the backdrop of the U. S. Government’s unprecedented deportation of dozens of immigrants to a foreign prison without due process, a majority of this Court sees fit to vacate the District Court’s order. The reason, apparently, is that the majority thinks plaintiffs’ claims should have been styled as habeas actions and filed in the districts of their detention. In reaching that result, the majority flouts well-established limits on its jurisdiction, creates new law on the emergency docket, and elides the serious threat our intervention poses to the lives of individual detainees.

As an initial matter, the majority’s assertion that plaintiffs’ claims “sound” in habeas is in tension with this Court’s understanding of habeas corpus as, at its core, an avenue for a person in custody to “attack . . . the legality of that custody” and “to secure release from illegal custody.” The plaintiffs in this case sued not to challenge their detention, but to protect themselves from summary deportation pursuant to the Proclamation. Indeed, because all of the plaintiffs were already in immigration detention under other statutes when the Government subjected them to the Proclamation, they “have repeatedly emphasized throughout this litigation that they ‘do not seek release from custody’ ” and are not “contesting the validity of their confinement or seeking to shorten its duration.”

Against that backdrop, there is every reason to question the majority’s hurried conclusion that habeas relief supplies the exclusive means to challenge removal under the Alien Enemies Act. At the very least, the question is a thorny one, and this emergency application was not the place to resolve it.

Meanwhile, funneling plaintiffs’ claims into individual habeas actions across the Nation risks exposing them to severe and irreparable harm. Rather than seeking to enjoin implementation of the President’s Proclamation against all Venezuelan nationals in immigration detention, detainees scattered across the country must each obtain counsel and file habeas petitions on their own accord, all without knowing whether they will remain in detention where they were arrested or be secretly transferred to an alternative location.

That requirement may have life or death consequences. Individuals who are unable to secure counsel, or who cannot timely appeal an adverse judgment rendered by a habeas court, face the prospect of removal directly into the perilous conditions of El Salvador’s CECOT, where detainees suffer egregious human rights abuses.

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