Supreme Court Punts On "Due Process"

How Much Process Is Due Deportees Under The AEA?

While the Supreme Court’s responsibility is to resolve Constitutional questions regarding “due process”, the Supreme Court’s latest ruling involving the Alien Enemies Act fails completely. Where the Court has a duty to bring clarity, it instead created more confusion.

Instead of giving a clear statement of Constitutional principle, the Court ruled merely that it wanted to keep its options open for future Alien Enemies Act challenges. The Court was asked to reach a final decision, and chose to punt instead.

Curiously, this latest ruling in A.A.R.P v Trump¹ even states explicitly that it is merely a holding action, and finds only that the presumed Tren de Aragua gang members held at a North Texas detention facility are entitled to more time than initially provided to file habeas corpus challenges to their detention and removal.

To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.

At issue is a question that, amazingly, the Court already answered: “how much process is due under the Alien Enemies Act?” The answer, per the Supreme Court, is a habeas corpus petition. That was the explicit finding in Trump v J.G.G² (emphasis added):

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.

The language of this latest ruling confirms that a deportees only avenue for legal challenge is a habeas petition.

Where the Court takes exception to the government’s position is in the amount of notice being extended to deportees. Simply put, the Court ruled that 24 hours was insufficient notice under the circumstances:

Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.

However, what the Court declined to do in its per curiam ruling was to clarify the extent of what a deportee may plausibly challenge via habeas.

We must remember that the same text in Trump v J.G.G. which reduced the mechanism of due process within the context of the Alien Enemies Act to the habeas petition also confirmed that the Alien Enemies At itself is almost entirely beyond judicial review. The courts simply do not have a say in how the AEA is administered.

Accordingly, the only habeas challenge which would fall within the jurisdiction of the courts is whether or not a person is actually subject to deportation under the AEA, a point I have made previously:

Supreme Court Taps the Brakes on Trump’s Deportation Push

We should also note that the precise wording of President Trump’s invocation includes a particular finding of fact which may be open to legitimate challenge with respect to the characterization of the persons to be considered Alien Enemies.

Based on these findings, and by the authority vested in me by the Constitution and the laws of the United States of America, including 50 U.S.C. 21, I proclaim that all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.

While nationality, age, and immigration status are straightforward and readily ascertainable facts, membership in Tren de Aragua is rather more problematic, and a person who is not a member of Tren de Aragua is not deportable as an Alien Enemy regardless of their immigration status.

While the Alien Enemies Act is beyond judicial review in most respects, President Trump’s particular invocation is limited to identified members of Tren de Aragua,. That is a question of fact which is potentially open to challenge and is therefore justiciable within a habeas petition.

However, the only habeas question that is justiciable is whether a person meets the criteria of an Alien Enemy within President Trump’s invocation of the Alien Enemies Act.

That the Court is unclear on this point is evident by Justice Brett Kavanaugh’s brief but erroneous concurrence,

The injunction simply ensures that the Judiciary can decide whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act before they are in fact removed. The underlying legal questions that the courts may need to decide before the removals occur include: (i) whether the Alien Enemies Act (as distinct from the ordinary removal process under the Immigration and Nationality Act) authorizes removal of these detainees and (ii) if so, what notice is due before removal.

Kavanaugh is confused: the courts do not decide what the Alien Enemies Act authorizes—that is what “largely beyond judicial review” means.

Indeed, Justice Samuel Alito, in his dissent, noted that the Supreme Court lacked jurisdiction even to hear this case—which indeed it may on procedural grounds.

Dismissing the case for lack of jurisdiction would have compelled the lower courts to address the habeas question in greater detail. As the Court elected not to dismiss the case for lack of jurisdiction, it should have addressed the habeas question in detail.

Specifically, the Court should have clarified the boundaries of what is justiciable within habeas under the AEA. Moreover, if the Court feels confident enough to say that 24 hours is insufficient notice, then the Court should have the confidence to say how much time would constitute sufficient notice. The Court did not do that, but instead directed the Fifth Circuit Court of Appeals to resolve that question. The Court’s stated reasoning reeks of moral as well as intellectual cowardice:

But it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case.

If the Court cannot determine the precise process that is due, then it cannot determine that the process being challenged is not that process. The Court is simply contradicting itself by this logic.

We must remember that the debate over how alien enemies of the United States were to be handled was resolved with the passage of the Alien Enemies Act—an act which has never been questioned as to its basic Constitutionality.

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There has not been a time in the United States when the status of alien enemy was not understood as one demanding removal. While Thomas Jefferson and James Madison opposed the Alien and Sedition Acts passed on the summer of 1798 broadly, the one act they did not oppose was the Alien Enemies Act, as James Madison’s report on the Virginia Resolution makes clear:

The next observation to be made is, that much confusion and fallacy have been thrown into the question, by blending the two cases of aliens, members of a hostile nation; and aliens, members of friendly nations. These two cases are so obviously and so essentially distinct, that it occasions no little surprise that the distinction should have been disregarded; and the surprise is so much the greater, as it appears that the two cases are factually distinguished by two separate acts of Congress, passed at the same session, and comprised in the same publication; the one providing for the case of "alien enemies;" the other "concerning aliens" indiscriminately; and consequently extending to aliens of every nation in peace and amity with the United States. With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress is denied to be constitutional; and it is accordingly against this act that the protest of the General Assembly is expressly and exclusively directed.

Thus the only question that can ever be at issue for persons detained under the auspices of the AEA is whether or not they meet President Trump’s defined criteria for an alien enemy. If they do, they are to be deported.

That is the beginning, middle, and end of the legal discussion regarding deportees “due process” rights under the Alien Enemies Act.

The Supreme Court had the opportunity to make this clear, and has the obligation to do so. The Supreme Court failed to make this clear.

The Supreme Court failed the law, failed the Constitution, and failed the American people.

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1. A.A.R.P. v. Trump, 605 U.S. ___ (2025)

2. Trump v. J. G. G., 604 U.S. ___ (2025)