Ignore the Trump Administration Spin: The Supreme Court Decision Yesterday Was Still a Win for Due Process

 Yesterday in a 5-4 decision, the U.S. Supreme Court overturned the order of the district court in D.C. stopping deportation and transfer of Venezuelans to El Salvador pursuant to the Alien Enemies Act.  The Trump Administration immediately declared this a huge win.   As the Washington Post reports, "Homeland Security Secretary Kristi L. Noem celebrated the Supreme Court’s ruling in a social media post Monday evening. “President Trump was proven RIGHT once again! SCOTUS confirms our Commander-in-Chief Donald J. Trump has the power to stop the invasion of our country by terrorists using war time powers. LEAVE NOW or we will arrest you, lock you up and deport you,” she wrote."

To the contrary, while the Supreme Court decision was disappointing in many respects, it was also a unanimous decision that migrants are entitled to due process before being deported and transferred. 

As a starting point, it is important to note that the Court did not reach the merits of the case.  It did not decide whether the Alien Enemies Act authorized the transfer of migrants to El Salvador.  It did not decide whether the transfer of the migrants to a notorious El Salvadoran prison was lawful.  Instead, the Court merely ruled that the case was brought in the wrong court.  The case was brought in the federal courts in D.C. as a case under the Administrative Procedures Act, but should have been brought as a habeas corpus action in Texas where the migrants were detained. 

What is interesting about the decision is that the Majority expressly rejected the argument that migrants could be removed without notice and an opportunity to contest removal:

“It is well established that the Fifth Amendment entitles aliens to due process of law” in the context of removal proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). So, the 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.

This point is emphasized by Justice Sotomayor in her dissent:

 Critically, even the majority today agrees, and the Federal Government now admits, that individuals subject to removal under the Alien Enemies Act are entitled to adequate notice and judicial review before they can be removed. That should have been the end of the matter.

.  .  .

So too do we all agree with the per curiam’s command that the Fifth Amendment requires the Government to afford plaintiffs “notice after the date of this order that they are subject to removal under the Act, . . . within reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Ante, at 3. 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. 

Not surprisingly, the ACLU called this an important victory.  They are clearly right.

So what does this mean?  For future attempts to transfer migrants under the Alien Enemies Act, the Trump Administration must afford "a meaningful opportunity to file and pursue habeas relief."  Given the practice of the Administration in sending detainees to Texas (where the district court and Court of Appeals are dominated by conservatives), most of these cases will need to be filed in the Texas federal district courts--which will be much less favorable to migrants than D.C.  Nonetheless, the argument that the Alien Enemies Act does not authorize the removals (as well as the argument than transfer to the El Salvadoran prison is itself a constitutional violation remain) will be litigated and most likely decided by the Supreme Court.

 What of the migrants sent to El Salvador already?  I think they have a good argument that after transfer to El Salvador, the D.C. district court is the right venue for their habeas action.  The district court this morning issued an order stating that "[T]he Supreme Court...determined that the appropriate venue for such proceedings is the Southern District of Texas or wherever Plaintiffs are currently held."   There is case law supporting that D.C. is the appropriate venue for habeas for individuals held outside the United States.  Indeed, I have been involved in two habeas cases brought by detainees at Guantanamo, and these were brought in D.C. Last time I checked, El Salvador is outside the U.S. 

The most challenging issue is what relief the migrants can obtain.  That is the issue before the Supreme Court as I write.