The Supreme Court’s Alien Enemies Act Decision Is A Sign Of Bad Things To Come

The Supreme Court ruled on Tuesday that detainees held for removal by the Trump administration under the Alien Enemies Act are, in fact, owed due process, the right to know that they are being removed and given the opportunity to contest their detention and removal. While this should be obvious, it is nonetheless a positive development for the court to affirm that the Constitution still exists.

However, an unsigned majority decision by five conservative justices severely undercut the ability of these detainees to access the relief needed for them to get a fair hearing.

Instead of allowing class-wide claims or claims brought through administrative law challenges, these five conservatives ruled that detainees cannot bring a class-action suit challenging their designation as “alien enemies” but may only challenge their detention individually through habeas petitions in the jurisdiction where they are held.

This decision by Justices John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh to narrow the availability of judicial review and relief for this particular class of detainees should be seen as a sign of bad things to come. It is a harbinger that the court doesn’t see President Donald Trump’s policy to pick people up off of the street, claim without due process (or, in many cases, evidence) that they are “alien enemies” and render them to a foreign torture prison as a serious threat to the Constitution or the rule of law.

Justice Sonia Sotomayor summed up the actual threat of Trump’s extraordinary rendition policy succinctly in a dissent joined by Justices Elena Kagan, Ketanji Brown Jackson and, in part, Amy Coney Barrett.

“The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal,” Sotomayor wrote. “History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise.”

The case before the court revolved around the Trump administration’s rapid removal of hundreds of Venezuelan and Salvadoran immigrants who it had deemed “alien enemies” after Trump invoked the Alien Enemies Act to label certain foreign gangs as invading armies. The detainees were, without evidence, identified as gang members and sent off to a prison in El Salvador where no one has ever left. These removals occurred as District Court Judge James Boasberg had ordered them to stop. But the administration ignored his order. The administration appealed to the Supreme Court to reverse Boasberg’s temporary restraining order halting all similar future removals as he continued to hear the case.

The five conservative justices, however, intervened to short circuit the ordinary review process in the lower courts in order to stop those judges from slowing Trump’s removals, albeit with the allowance that detainees have the right to challenge their detention. Those challenges, however, must come on an individual basis and only in the jurisdiction of their detention.

Since the administration is quickly whisking any detained immigrant off to prisons in Louisiana or Texas, those challenges will occur within the jurisdiction of the Fifth Circuit Courts. The Fifth Circuit is the most conservative, most Trump-y federal court in the entire country. It boasts numerous appellate judges who are actively auditioning for a Trump Supreme Court appointment, including Judge James Ho, who has already endorsed Trump’s novel declaration that immigration can be an “invasion.” The speed at which detainees are moved across the country also makes it nearly impossible for someone to know where to file a habeas petition.

The justices who intervened in this case know that they are pushing any habeas challenge brought by Alien Enemy Act detainees into the Fifth Circuit, where they are likely to face the most hostile audience for such claims.

This decision to intervene, craft new precedent on detention and removal and undermine the lower courts is “as inexplicable as it is dangerous,” Sotomayor wrote in her dissent.

“In its rush to decide the issue now, the Court halts the lower court’s work and forces us to decide the matter after mere days of deliberation and without adequate time to weigh the parties’ arguments or the full record of the District Court’s proceedings,” Sotomayor wrote.

In an even more pointed statement, Jackson wrote in a separate solo dissent that the five conservatives in the majority are setting new precedent in a “casual, inequitable, and, in my view, inappropriate manner.”

“At least when the Court went off base in the past, it left a record so posterity could see how it went wrong,” Jackson wrote with a pointed citation to the 1944 decision in Korematsu v. U.S. where the court upheld the internment of Japanese-Americans during World War II.

The decision also provides the administration with a win, even as it rather clearly violated a lower court order when it rapidly removed detainees to El Salvador.

“Far from acting ‘fairly’ as to the controversy in District Court, the Government has largely ignored its obligations to the rule of law,” Sotomayor wrote.

And the court’s intervention also leaves open the question of what happens to those sent off to the foreign gulag. Administration officials argue they do not have the power to bring anyone back from El Salvador, even if they admit, as they have done, that a detainee should not have been sent there.

If those already removed must file habeas petitions from the jurisdiction where they are held, those in an El Salvador prison may have little to no options to challenge their imprisonment. A future case may resolve this through court precedents related to War on Terror detentions at Guantanamo Bay that provide the ability of detainees to file habeas petitions in the D.C. Circuit courts.

In Boumediene v. Bush, the court ruled 5-4 that detainees held at Guantanamo had the right to habeas relief. However, this holding hinged on Guantanamo being a U.S. territory under the Insular Cases. El Salvador is not a U.S. territory. Furthermore, the Boumediene majority consisted of now-retired Justice Anthony Kennedy and four liberals. Roberts, Alito and Thomas were all in the minority opposed to the decision.

The court may have a bite at this apple soon, as they have taken up a petition from wrongly removed Salvadoran detainee Kilmar Abrego Garcia for review on the shadow docket.

But the decision to intervene here and with this result in the Alien Enemies Act case bodes ill for any hope that the court’s conservative supermajority sees Trump’s actions as “an extraordinary threat to the rule of law,” as Sotomayor wrote in her dissent. They seem ready and willing to create technicalities to allow Trump’s war on the Constitution to continue.