SCOTUS Rulings on Illegal Alien Deportations
Recent Supreme Court decisions surrounding President Trump’s use of the Alien Enemies Act and the designation of the Tren de Aragua gang as a foreign terrorist organization, have ruffled the feathers of not a few in the Trump Administration, as well as its many MAGA supporters. Trump officials and supporters of mass deportations have chided both district courts and the Supreme Court for obstructing the President’s mandate to remove the millions of illegal aliens who came into the country during Biden’s term. Accusations of judicial coups, unconstitutionality, and violations of the Executive’s proper Article II powers—not to mention double standards on due process and applying the rule of law (none of which was applied to illegal aliens entering or the Biden administration’s failure to enforce the law)—have spread rapidly across social media platforms. What is going on with the courts, and how should Trump’s supporters understand the decisions of the Supreme Court to date?
On March 14, 2025, President Trump signed an executive order invoking the Alien Enemies Act on 1798 in order to deport illegal aliens of “any foreign nation or government” who are perpetrating “any invasion or predatory incursion” into the United States. To this end, Trump simultaneously declared that the Venezuelan gang, Tren de Aragua (TdA), was a “foreign terrorist organization” and was being used by the Maduro regime to facilitate mass illegal immigration, human sex and drug trafficking, and the destabilization of American sovereignty.
Almost immediately, the Department of Homeland Security targeted hundreds of TdA gang members, placing them under custody and preparing them for deportation. All of the Supreme Court cases below relate to El Salvadorian and Venezuelan nationals who are illegal immigrants, and who have been accused of being associated with TdA or MS-13—and thus the target of Trump’s priority of deporting criminal gang members, and especially his application of the Alien Enemies Act.
Noem v. Abrego Garcia (April 10, 2025)
The day after Trump signed his executive order (the EO was made public on March 15, 2025), Abrego Garcia (a Salvadorian) was deported from the United States and sent to El Salvador’s Center for Terrorism Confinement (CECOT). Garcia had been in the United States illegally since 2011, and an immigration court had ordered his deportation in 2019. His application for asylum was denied; however, immigration judge David M. Jones did grant Garcia his request for a “withholding of removal” status—basically a stay on the deportation order due to unsafe conditions in Garcia’s home country. (While asylum grants protection for immigrants from being removed to their home country, grants them permission to work, and allows them to bring family members to the U.S., a withholding of removal gives no positive benefits to the immigrant. It merely delays the deportation until conditions improve.)
Garcia was accused of being part of the MS-13 gang, also designated as a foreign terrorist organization by President Trump. Garcia has subsequently been accused of domestically abusing his wife in 2020, as well as participating in child smuggling and trafficking. After his deportation, Garcia’s wife sued in federal court in an attempt to compel the Government to return Garcia to the United States. In its decision, the Court partially upheld the Maryland District Court’s order that the Government must “facilitate and effectuate” the return of Mr. Garcia to the U.S. (which the Government denies it can do since Garcia is now under the sovereignty of a foreign country). At the same time, the Court required the district court to clarify the intended scope of “effectuate.” The Court also noted that the Government had admitted that its removal of Garcia, despite the withholding of removal order, was due to an “administrative error.”
In its order, the Maryland District Court filed the injunction because it claimed the Government had violated the 1952 Immigration and Nationality Act (8 U.S.C. 1231(b)(3)(a)) in removing Garcia because his life was supposedly threatened if deported to El Salvador; and that therefore the Government had not followed the proper legal processes in removing him. In addition, the District Court argued that Garcia’s removal and presence in an El Salvador prison constitutes “irreparable harm,” that “the balance of equities and public interest” weigh in favor of returning Garcia, and that only a preliminary injunction could promptly restore Garcia to the United States.
There are a number of takeaways from this case. First, “withholding of removal” orders are easily abused for the removal of illegal aliens, especially those who are members of illegal foreign gangs and who have committed felonies. While both the 1952 Immigration and Nationality Act, as well as later Congressional revisions, made provision for protecting illegal aliens being deported to dangerous countries, they did so on the grounds of humanitarian protection. The problem is that at this point, almost everyone coming into the United States illegally is doing so due to some hardship or form of persecution. It is virtually guaranteed that almost every illegal alien gang member is going to face backlash or danger of some kind upon removal to their country of origin (that’s the nature of being part of a violent gang); and so of course they are going to file for asylum and withholding protection (as Garcia did). Why is the United States responsible for the welfare of aliens sent back to their home country who broke the law to come here as illegal immigrants? Is not the U.S. Government primarily responsible for the welfare of American citizens? Why should American citizens continually pay for the court expenses of these alien gangbangers, or suffer from the crime and chaos that they sow? Are we responsible for protecting the world’s inhabitants against persecution of all sorts? In truth, our over-extended and abused immigration, refugee, and asylum systems often act as if this were the case.
In addition, while the Government was in legal error for removing Garcia despite his withholding protection, at some point, the Government has to be able to act to remove illegal aliens (especially gang members and those who commit crimes) despite the legal red tape that continually frustrates good policy. This requires triage: privileging due process and habeas claims appropriate for illegal immigrants (see Conclusion), while deprioritizing other stipulations. While no one is encouraging criminal behavior, the Government needs to find creative ways to circumvent or nullify the labyrinth of ad hoc immigration policies and arbitrary court rulings that bring deportations to a halt and allow criminal aliens free range in our country.
Donald J. Trump v. J.G.G. (April 7, 2025)
The second major case (decided before Garcia’s, but adjudicated at the same time) involved five Venezuelan nationals accused of being part of TdA, who had been detained and whose deportation was imminent. In this case, prior to the public pronouncement of the March 15 Alien and Enemies Act executive order, the Trump administration began rounding up these Venezuelans so as to have them detained, processed, and ready to be deported as soon as the executive order was signed. In her dissent in the case, Justice Sotomayor complained that “the Government’s plan, it appeared, was to rush plaintiffs out of the country before a court could decide whether the President’s invocation of the Alien Enemies Act (AEA) was lawful or whether these individuals were, in fact, members of Tren de Aragua.” This, in her opinion, was in violation of the plaintiff’s notice and due process rights to challenge their detention and impending deportation. It was also, supposedly, contrary to the Alien and Enemies Act itself, which requires the President to make “public proclamation” of the war or invasion before “natives, citizens, denizens, or subjects of the hostile nation or government” can be prosecuted.
The detainees’ attorneys, suspecting something was up, filed a class action lawsuit in the District of Columbia (even though the detainees were being held in federal detention in Texas, the class action made it possible to shop for a favorable district court in DC). Their brief denied that the AEA was being lawfully applied, and argued the Government’s action was in violation of due process. Additionally, their brief did not seek a release for the detainees, but merely a stay on their scheduled deportation. The D.C. Fourth Circuit upheld the District Court’s temporary restraining order (TRO) and denied the Government’s emergency motion to stay the lower court’s order.
The per curiam decision of the Court, however, reversed the TRO. The Court did not decide on the merits of the AEA, but on procedural grounds: namely, that since the AEA is not subject to judicial review (being a prerogative of the Executive Branch under wartime or emergency conditions), the only appropriate relief to be sought by the plaintiffs was by a habeas petition. Demurring from Sotomayor’s dissent, the Court held that regardless of whether the detainees were seeking formal release or just protection from deportation, their case fell under the “core” of the habeas writ (defined as a claim that challenges the validated of a detention, conviction, or sentence; see Preiser v. Rodriguez, 411 U.S. 475, 489 [1973]; Nance v. Ward, 597 U.S. 167 [2022]), and as such, had to be filed in the jurisdiction in which they were being detained. Thus, the Supreme Court remanded the plaintiff’s suit to the District Court of Northern Texas to be litigated as a habeas petition.
Regarding the detainees’ move for equitable relief from removal (i.e., immediate deportation), the Court admitted that on this matter, the AEA allows judicial review regarding matters of “interpretation and constitutionality” of the Act (as well as determining if the detainees are, in fact, alien enemies). The Government also agreed that the plaintiffs were entitled to judicial review—the question, however, is what kind of judicial review? The Court, quoting Reno v. Flores (1996), repeated Justice Scalia’s declaration that “It is well established that the Fifth Amendment entitles aliens to due process of law” (we will return to this below). The plaintiffs were thus entitled to proper notice of their impending deportation as well as the opportunity to challenge that action under a habeas petition. As the Court concluded, “today’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. For the reasons set forth, we hold that venue lies in the district of confinement.”
Having been remanded to the Northern Texas District Court, the case began anew under a habeas suit, which is what the final case below sought to resolve.
A.A.R.P. v. Donald J. Trump (May 16, 2025)
Thus, two Venezuelan nationals under detention and extradition filed their habeas corpus complaint with the Northern Texas District Court. The Court, however, denied the application of both A.A.R.P. and W.M.M. (both pseudonyms of aliens) for a temporary restraining order and class certification (i.e., to be able to bring their habeas suits as a class action case). The District Court explained that since the Government had provided assurance that they would not remove the alien nationals until their habeas petitions were resolved, there was no need for an emergency TRO. Of course, the plaintiffs appealed to the Fifth Circuit Court, but that Court dismissed the detainees’ appeal for lack of jurisdiction. They then appealed to the Supreme Court.
In another per curiam decision, the Supreme Court argued that despite the Government’s assurances to the District and Circuit Courts that they would not seek to remove the detainees prematurely, “Evidence now in the record (although not all before us on April 18) suggests that the Government had in fact taken steps on the afternoon of April 18 toward removing detainees under the AEA—including transporting them from their detention facility to an airport and later returning them to the facility.” Afraid that the Government would deport the foreign nationals, and then, as in the Garcia case, argue that no U.S. court had jurisdiction to order their return, the Supreme Court granted the plaintiff’s TRO. In addition, the Supreme Court construed the case as a petition for writ of certiorari (i.e., a higher court claiming the right to review a lower court’s decisions), even before the lower courts had made a judgment on the merits. In summary, the Supreme Court noted that “we decide today only that the detainees 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.” In other words, the Court remanded the case back to the lower courts to decide the matter on the basis of due process rights.
In his dissent, Justice Alito torched the Court’s decision. He claimed three things: that the Court lacked jurisdiction to take the case and order relief, that the case could not be reversed because the applicants had failed to satisfy the requirements for emergency injunctive relief, and that the grant of certiorari before the Circuit or District Courts had decided on the merits was an extraordinary and unnecessary step. In the first case, the attorneys for A.A.R.P. and W.M.M. had applied for an emergency TRO at 12:34 pm on April 18, and at 12:48 pm they moved for a decision by the District Court by 1:30 pm—in essence giving the Court only 42 minutes to consider and decide their application. When this unreasonable deadline was not met, the plaintiffs construed the Court’s failure to meet their deadline as a “constructive denial” of their emergency TRO, and they promptly appealed to the Fifth Circuit at 3:02 pm. In accurate detail, Justice Alito rebuffed the Court’s acceptance of this tale, showing that there was no “constructive denial,” merely an impossible timeline and impatience on the part of the plaintiffs to wait for the District Court to be able to properly decide their case. As Alito concluded, “delivering such an ultimatum to a district court judge (‘Act on my motion on a complex matter within 42 or 133 minutes or I’ll file an appeal and divest you of jurisdiction’) represented a very stark departure from what is usually regarded as acceptable practice.”
Secondly, Alito demonstrated that the Court had improperly taken into consideration later evidence (not really evidence, but a “double-hearsay statement”) that the Government was about to deport the Venezuelans and so deny them notice and habeas proceedings. This hearsay “evidence” was not available to the District Court, and so there was no danger of imminent removal—and so no need for an emergency TRO (which is why both the District and Circuit Courts were right to deny it).
Third, and most importantly, the plaintiffs had filed their case as a class relief in a habeas proceeding; meaning, they were seeking due process relief, not as individuals, but as representatives of an entire class of persons (i.e., all illegal alien gang members detained and deported under the AEA). The problem, as Alito carefully noted, was that the Supreme Court historically had denied that habeas suits could be classified as class actions, precisely because habeas (short for habeas corpus [coram nobis] ad subjiciendum, or “that you have the person [before us] for the purpose of subjecting (the case to examination)”), is necessarily an individual petition based upon person-specific circumstances. Habeas petitions cannot be represented as class-wide actions, because they deal with particular persons and their unique needs and claims.
Even more troublingly, the Court, in its decision, continually construed the petitioners as a “putative class” who were entitled to notice and due process rights. Yet as Alito countered, “the Court provides no analysis suggesting that class certification here is ‘otherwise proper,’ and instead asserts that it can ignore the question of class certification at this preliminary stage.” In other words, the Court is wrongly presuming the plaintiff’s habeas petition can, in fact, be a class action suit, and rendering a decision on that assumption—instead of remanding the case back to the lower courts to decide that very issue. Even more extraordinarily, in the time that the case was appealed to the Supreme Court and a verdict reached, the District Court in Northern Texas had conducted a rigorous analysis and had come to the decision that a class certification of the habeas petition was improper (on May 9).
Thus, in this case, the Supreme Court has jumped the shark, inappropriately intervening on the basis of a false emergency before the District Court has had proper time to consider all the variables and render judgment. This now creates a legal morass, with discrepancies across all three levels of courts still needing to be ironed out. Whether or not the Supreme Court is doing this as a kind of quasi-judicial activism before the lower courts have finished their work in order to steer these cases toward a particular outcome and so frustrate the Trump administration’s plans remains to be seen.
Conclusion: The Problem of Due Process
As of this moment, the Supreme Court has been fiddling and tinkering with procedural matters relating to Trump’s emergency policies to quickly deport the most dangerous and criminal illegal aliens in America. This can seem necessary and proper, and in ordinary circumstances it would be. The rule of law (so often denigrated today, but in a healthy republic quite good and necessary) requires well-established judicial procedures that are closely adhered to; anything less would smack of arbitrary government, special favors, and rank injustices. Yet in times of national emergency, drawn-out procedural quibbling (what court has proper jurisdiction?, what does “effectuate” mean?, can habeas be a class action?) can be dangerous. The Supreme Court is in danger of so fastidiously following the rule of law that they facilitate the decline and collapse of our nation.
The crux of the matter is not procedural but substantive: what kind of “due process” is due to illegal alien enemies so classified under the Alien Enemies Act? All of the Supreme Court Justices pointed to Scalia’s words in Reno v. Flores (507 U.S. 306), yet Scalia quotes from The Japanese Immigrant Case (189, U.S. 86 [1903]). That case is fascinating for what it says about due process rights under the non-reviewable AEA. Here is an extended excerpt:
Now, it has been settled that the power to exclude or expel aliens belonged to the political department of the Government, and that the order of an executive officer, invested with the power to determine finally the facts upon which an alien’s right to enter this country, or remain in it, depended, was “due process of law, and no other tribunal, unless expressly authorized by law to do so, was at liberty to reexamine the evidence on which he acted, or to controvert its sufficiency.”… But this court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in “due process of law” as understood at the time of the adoption of the Constitution. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time, to be heard, before such officers, in respect of the matters upon which that liberty depends-not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act. (Italics added; at 100-101)
The key is that due process for illegal aliens under the AEA only requires that their case be heard before an executive official to whom alone they can appeal. These officials are invested with the right of fact-finding and determination, from which the alien cannot appeal if the facts are determined against them. In other words, illegal alien gang members are not accorded the full due process rights of the Fifth and Sixth Amendments; those rights are reserved for citizens only. Illegal alien gangbangers only have the ‘due process right’ for the U.S. Government to determine that they are, in fact, here illegally and are members of foreign terrorist gang organizations. This is what Trump’s executive orders and current policies are seeking to do, and it is what the Supreme Court seems determined to frustrate.
Image Credit: Self Portrait with Death Playing the Fiddle by Arnold Bocklin, 1872
