SCOTUS, 5-4, backs Trump effort to end one route for Alien Enemies Act challenges

The court was unanimous that challenges could be brought, but the limit — only habeas claims can be brought — raises significant questions and concerns.

On Monday, the five men on the U.S. Supreme Court said they would take President Donald Trump and his administration at their word in litigation over Trump’s use of the Alien Enemies Act of 1798. This despite the fact that these are the very people who have spent the past 24 days trying to avoid; manipulate; deceive; and, in at least one instance, likely outright ignore the courts in the litigation.

The four women justices would do no such thing and said so — although Justice Amy Coney Barrett held back a little more than the others.

On a 5-4 vote and with an unsigned, per curiam opinion, the Supreme Court granted the Trump administration’s emergency request to vacate the district court orders that had been temporarily blocking Trump’s unprecedented use of the Alien Enemies Act to deport Venezuelans who the administration has decided are part of a gang, Tren de Aragua. The orders had been in place since the Trump administration began implementing Trump’s proclamation on March 15.

At the same time, however, it is important to note — as both sides did — that there was significant unanimity hiding beneath Trump’s “victory” on Monday. All nine justices agreed that AEA removals are subject to judicial review — and that the propriety of Trump’s invocation of the law here was not addressed by Monday’s decision — and that due process requires that anyone the administration is seeking to deport under the AEA receive notice that they have been so designated and have an actual opportunity to challenge their AEA-related removal.

That unanimity is important — and does mean that this ruling could be more temporary than it is devastating. At the same time, though, there is much to question and challenge in the five-justice majority’s disturbing opinion — which said nothing about how those people sent to the El Salvador prison on those first two planes on March 15 are to address their claims.

Justices Sonia Sotomayor and Ketanji Brown Jackson both warned in their dissents — Sotomayor in a part joined by Justice Elena Kagan and Jackson — that the court’s decision is “dangerous.”

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The habeas limit

Couching the decision in a mass of procedure, the per curiam opinion insists on its narrowness. After writing dismissively about “the rhetoric of the dissents,“ the per curiam states:

[T]oday’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge.

The issue here, the per curiam insists, boils down to what type of challenge must be brought.

This has been debated in courts since March 15. The plaintiffs initially brought both a class-action Administrative Procedure Act claim and petition for a writ of habeas corpus in federal court in D.C. when they caught wind of the coming AEA proclamation. Generally, a habeas claim is to be brought in the jurisdiction in which a person is held, because it is, technically, a request to the court to order the jailer to turn over the person. After some back in forth in front of Chief Judge James Boasberg on March 15, and given that the individual plaintiffs were in Texas, the plaintiffs agreed to dismiss their habeas claim because their APA claim could be considered in D.C. With that, Boasberg provisionally certified a class of all those covered by the AEA proclamation and issued the classwide TRO.

On Monday, the five men justices wiped that aside, declaring new law about the rarely-invoked AEA and about how habeas works in the course of their brief opinion — and they did so with only the most minimal of briefing, little opportunity for non-party participation, and without argument. The per curiam declared that the new rule is:

Challenges to removal under the AEA, a statute which largely “‘preclude[s] judicial review,’” Ludecke v. Watkins, 335 U. S. 160, 163−164, (1948), must be brought in habeas. … 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. … For “core habeas petitions,” “jurisdiction lies in only one district: the district of confinement.”

For his part, Justice Brett Kavanaugh wrote separately — while joining the per curiam in full — to note briefly that “the use of habeas for transfer claims is not novel.“

The majority’s decision: The AEA is only to be challenged in habeas and in the district of confinement.

In a section of Sotomayor’s dissent joined by all three other dissenters — Barrett only joined two sections of the dissent, but they were key substantive sections — Sotomayor wrote of the decision, “This conclusion is dubious. … The plaintiffs in this case sued not to challenge their detention, but to protect themselves from summary deportation pursuant to the Proclamation.“

Going on to detail the court’s history of deciding when habeas is the only means of challenging an action and, specifically, as to the APA, she concluded:

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.

She went on to note that the preliminary injunction hearing had been scheduled for Tuesday and that the court could have, soon enough, heard a more developed case on appeal if it wished — with full briefing and argument.

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The habeas right

There is, though, the agreement — in a way — on what comes next: Habeas cases.

As the per curiam detailed:

Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to “‘judicial review’” as to “questions of interpretation and constitutionality” of the Act as well as whether he or she “is in fact an alien enemy fourteen years of age or older.” Ludecke, 335 U. S., at 163−164, 172, n. 17. … [T]he detainees are entitled to notice and opportunity to be heard “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). 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 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.

In a part of her dissent joined by all three other dissenters, Sotomayor elucidated on that point — with a warning to the Trump administration:

That means, of course, that the Government cannot usher any detainees, including plaintiffs, onto planes in a shroud of secrecy, as it did on March 15, 2025. Nor can the Government “immediately resume” removing individuals without notice upon vacatur of the TRO, as it promised the D. C. Circuit it would do. See 2025 WL 914682, *13 (Millett, J., concurring) (referencing oral argument before that court). 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.

And yet.

In detailing the difficulties this decision could cause, Sotomayor — in a section joined by Kagan and Jackson — warned that “funneling plaintiffs’ claims into individual habeas actions across the Nation risks exposing them to severe and irreparable harm.” Laying it out for those who might not understand what this means, she continued: “[D]etainees 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."

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The unaddressed harms

The majority did not address the harms it was causing — to those on the March 15 flights, those who would have benefited from the APA class, or to others — or the issues it was leaving unaddressed.

The majority opinion avoids addressing the facts — including the many, many, many alarming actions from the administration in implementation of the AEA proclamation and in its defense of the litigation challenging that — leaving Sotomayor to lay out the administration’s March 15 behavior, the ongoing contempt proceedings, and the overlapping case before the justices over Kilmar Abrego Garcia’s “administrative error” removal to El Salvador.

In a disturbing paragraph, joined by Kagan and Jackson, Sotomayor wrote:

For her part, Jackson wrote separately — while joining Sotomayor’s dissent in full — to add an important procedural counternote to the per curiam’s attempt to minimize the issue to one of procedure. Jackson, instead, focused on the Supreme Court’s procedure, condemning “[t]his fly-by-night approach to the work of the Supreme Court.”

She wrote:

The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. … But this Court now sees fit to intervene, hastily dashing off 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.

Monday’s ruling, she argued, was “Exhibit A” of what happens when the court gives a “rushed conclusion” to an issue that deserved full consideration by lower courts and then the Supreme Court before a decision. To that, she concluded:

At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.

This followed a 5-4 shadow docket ruling for the Trump administration on April 4 and comes as Abrego Garcia’s case remains pending before them on the shadow docket.