On Monday night, the Supreme Court handed down a 5-4 decision tossing out a closely watched district court decision, which blocked President Donald Trump’s attempt to use a 227-year-old law — the Alien Enemies Act — to deport many individuals without due process. The Court largely voted along party lines, although Republican Justice Amy Coney Barrett crossed over to dissent with the three Democratic justices.
Though the Court’s decision in Trump v. J.G.G. is a win for Trump, it is not a total victory. The Court does not express an opinion on whether the Alien Enemies Act actually permits Trump to deport anyone. It also rules that, before anyone is deported under this law, that person must be given “notice and an opportunity to challenge their removal.”
But this decision is still a significant victory for Trump — and a loss for anyone Trump’s administration deems worthy of deportation. For starters, Judge James Boasberg, the district court judge, had issued a blanket order that temporarily blocked all deportations under the Alien Enemies Act. Those deportations can now resume.
The Supreme Court’s decision also rules that anyone Trump targets must bring a “habeas” proceeding, a process that ordinarily can only be used by a single individual to challenge their detention by the government. That means judges can only bar detention on a person-by-person basis.
As Justice Sonia Sotomayor warns in dissent, “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 [Center for Terrorism Confinement], where detainees suffer egregious human rights abuses.” (The administration has sent several hundred men accused of belonging to the Venezuelan gang Tren de Aragua to that prison.)
Habeas proceedings must be brought in the place where the person seeking relief is detained. Thus far, the Trump administration has transferred prisoners it intends to deport under the Alien Enemies Act to Texas, which is located in the US Court of Appeals for the Fifth Circuit’s jurisdiction.
The Fifth Circuit is the most right-wing court in the federal appellate system. If someone brings a habeas suit in its jurisdiction, and the decision is appealed to the Fifth Circuit, the court could hand down a precedent that means any habeas proceedings challenging these deportations would fail.
The Supreme Court’s decision in J.G.G. stands on dubious legal grounds. Habeas is the correct process for anyone who challenges the government’s decision to detain them, but the individuals at issue in J.G.G. do not challenge the government’s authority to detain them. They only challenge the government’s ability to deport them under the Alien Enemies Act.
As the Court said in Skinner v. Switzer (2011), there is no case “in which the Court has recognized habeas as the sole remedy, or even an available one, where the relief sought would ‘neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody.’”
Finally, while the Supreme Court does not reach the question of whether the Alien Enemies Act can be used by Trump to deport people, the answer to this question under current law is an emphatic “no.” The Act, which has only been used three times in American history before Trump took office, may only be used against citizens of a country that the United States is at war with, or against a country that is engaged in a military invasion of the United States. The United States is not at war, nor has it been invaded.
Realistically, it is unlikely the Court can avoid the question of whether Trump may invoke this wartime statute for long. Indeed, in the likely event that the Fifth Circuit denies relief to the people Trump seeks to deport, one of them is likely to seek Supreme Court review of that decision.
For now, however, the Court gets to delay that showdown. The one silver lining in the J.G.G. case is that all nine justices agree that anyone Trump seeks to deport under the Alien Enemies Act must be given an opportunity to find a lawyer and challenge their deportation.
But that opportunity is unlikely to mean much for as long as these cases remain in the Fifth Circuit.
