Trump Admin Wins First Alien Enemies Act Skirmish Before SCOTUS — or Did It?

Summary

The Alien Enemies Act provides that “Whenever there is a declared war between the [U.S.] and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the [U.S.] by any foreign nation or government … all natives, citizens, denizens, or subjects of the hostile nation or government [at least 14 years old and not having become naturalized U.S. citizens] … shall be liable to be apprehended, restrained, secured, and removed as alien enemies.” The Supreme Court has long upheld the AEA’s constitutionality.

On Monday, the Supreme Court ruled that challenges to removal under the AEA “must be brought in habeas” corpus proceedings. Consequently, the Court vacated the application of federal District Court Judge James Boasberg’s temporary restraining orders preventing the Trump administration from removing under the AEA, pursuant to a proclamation issued by President Trump, all Venezuelans it has determined are members of the Venezuelan criminal cartel/designated foreign terrorist organization Tren de Aragua. Judge Boasberg had issued those TROs in a lawsuit based not on habeas but on claims under the Administrative Procedure Act.

This was certainly a victory for President Trump’s national security/immigration enforcement agenda. As the administration argued to the Supreme Court, “while habeas proceedings could theoretically delay or prevent the removal of certain individuals, they would not result in a nationwide, programmatic halt on all removals under the Proclamation.”

But was it a Pyrrhic victory? The Supreme Court made clear that “today’s order … confirm[s] that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal.”

To what extent will a slew of habeas proceedings “delay or prevent the removal” of aliens under the AEA who have been designated as alien enemies, and to what extent will such delay or prevention erase the advantages of using the AEA?

To what extent will a slew of habeas proceedings “delay or prevent the removal” of aliens under the AEA who have been designated as alien enemies, and to what extent will such delay or prevention erase the advantages of “summary” removal under the AEA as compared to removal proceedings under the Immigration and Nationality Act?

The answer will depend on two factors. First, how expansive will judicial review be in habeas proceedings? Will it encompass both whether 1) the alien at issue is an enemy alien, and 2) that the administration has satisfied the AEA’s statutory prerequisites that there has been an “invasion or predatory incursion” and that the invasion or incursion was by a “foreign nation or government”? The Trump administration argues that the only legitimate subject for judicial review is whether an alien is in fact an enemy alien as designated by the president. The majority opinion did not precisely answer the question.

If the Supreme Court determines that judicial review in habeas proceedings encompasses both whether an alien is an enemy alien and whether the administration has satisfied the AEA’s statutory prerequisites, this will greatly increase the complexity of the habeas proceedings and their duration.

Additionally, if the government has to prove to the satisfaction of the court in each case that an alien is a member of TdA, this will also greatly increase the complexity of such proceedings and their duration. President Trump could save himself a lot of trouble by simply declaring any Venezuelan national to be an enemy alien, thus eliminating the administration’s need to demonstrate aliens’ membership in TdA.

Introduction

On Monday, in Trump v. J.G.G., the Supreme Court ruled that “Challenges to removal under the [Alien Enemies Act], a statute which largely ‘preclude[s] judicial review,’ [quoting the Court’s 1948 decision in] Ludecke v. Watkins … must be brought in habeas.” What is habeas? As my colleague Andrew Arthur explains, “Habeas corpus is Latin for ‘you have the body.’” (I presume that Arthur heard that a lot in college.) In any event, he also notes that “as the U.S. courts website explains, a writ of habeas corpus issued by a court ‘generally is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner’s continued confinement’”.

The Supreme Court stated that “This matter concerns the detention and removal of Venezuelan nationals believed to be members of Tren de Aragua (TdA), an entity that the State Department has designated as a foreign terrorist organization.” The Court went on to explain that:

President [Trump] issued Proclamation No. 10903, invoking the [AEA] … to detain and remove Venezuelan nationals “who are members of TdA.”… Five detainees and a putative class sought injunctive and declaratory relief against the implementation of, and their removal under, the Proclamation. … On March 15 … the District Court for the District of Columbia issued two temporary restraining orders (TROs) preventing any removal of the named plaintiffs and preventing removal under the AEA of a provisionally certified class consisting of “[a]ll noncitizens in U.S. custody who are subject to” the Proclamation. … On March 28, the District Court extended the TROs for up to an additional 14 days.… The D.C. Circuit denied the Government’s emergency motion to stay the orders. The Government then applied to this Court, seeking vacatur of the orders.

On Monday, the Supreme Court “grant[ed] the application and vacate[d] the TROs”.

So who won? Abbie VanSickle reported in the New York Times that President Trump reacted to the decision on his Truth Social account by saying “The Supreme Court has upheld the Rule of Law in our Nation by allowing a President, whoever that may be, to be able to secure our Borders, and protect our families and our Country, itself. A GREAT DAY FOR JUSTICE IN AMERICA!”

But VanSickle also reported that Lee Gelernt, deputy director of the American Civil Liberties Union’s (ACLU) Immigrants’ Rights Project, stated that “the critical point is that the Supreme Court rejected the government’s position that it does not even have to give individuals meaningful advance notice so they can challenge their removal under the [AEA]. That is a huge victory.” In an ACLU press release, he messaged the “critical point” to be that “the Supreme Court said individuals must be given due process to challenge their removal under the [AEA]. That is an important victory.”

This blog post examines the question of who won.

The Alien Enemies Act

But first, what is the Alien Enemies Act? As I have written, it was enacted in 1798 in reaction to a feared invasion by France, then in the throes of the French Revolution. Unlike the other “Alien and Sedition Acts” of 1798, the AEA received wide bipartisan support, including that of Thomas Jefferson and James Madison, implacable opponents of the other acts.

The AEA is still good law, the Supreme Court noting in 1948 in Ludecke v. Watkins that it “has remained the law of the land, virtually unchanged since 1798”. The AEA provides in part that:

Whenever there is a declared war between the [U.S.] and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the [U.S.] by any foreign nation or government … all natives, citizens, denizens, or subjects of the hostile nation or government [at least 14 years old and not having become naturalized U.S. citizens] … shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

The federal government has utilized the AEA during the War of 1812 and during World Wars I and II (when the U.S. detained thousands of alien enemies and removed over a thousand). Federal courts have upheld the statute’s constitutionality, with the Supreme Court concluding in Ludecke that:

The [Constitution’s] war power… validly supports the power given to the President by the [AEA] in relation to alien enemies. Nor does it require protracted argument to find no defect in the [AEA] because resort to the courts may be had only to challenge the construction and validity of the statute and to question the existence of the “declared war,” as has been done in this case. The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.

In 1950 in Johnson v. Eisentrager, the Supreme Court (though in dicta) reiterated its conclusion in Ludecke:

• The resident enemy alien is constitutionally subject to summary arrest, internment and deportation. … Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the [AEA]. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment [citing Ludecke].

• [R]esident alien enemies] are entitled only to judicial hearing to determine … that they are really alien enemies. When that appears, those resident here may be deprived of liberty by Executive action without hearing.

The AEA is thus an extraordinarily powerful statutory tool, authorizing the summary detention and removal of nonnaturalized natives, citizens, denizens, or subjects of the relevant nation. J. Gregory Sidak has written that it contains “[o]ne of the most sweeping delegations of power to the President to be found anywhere”. As the Supreme Court put it in Ludecke:

[W]e hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it — on the President. … The Founders in their wisdom made him not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war. Such a page of history is worth more than a volume of rhetoric.

Trump v. J.G.G.

The Good News for the Trump Administration

As I mentioned, the Supreme Court’s ruled that “Challenges to removal under the AEA … must be brought in habeas.” This is what the Trump administration has argued from the beginning of this litigation at the district court level — that the only available venue for judicial review in the context of the AEA is in habeas proceedings.

Why is this so important to the Trump administration? Acting Solicitor General Sarah Harris explained in the administration’s Reply in Support of Application to Vacate the Orders Issued by the United States District Court for the District of Columbia (Reply) that:

• These are not mere “technical venue disputes,” as respondents contend. … Proceeding in an APA [Administrative Procedure Act] suit threatens greater harm to the government’s foreign relations interest than individualized habeas review would. Narrow habeas review of the AEA’s application is far less likely to subject the government to invasive inquiries into its sensitive negotiations with third countries like El Salvador.

• [W]hile habeas proceedings could theoretically delay or prevent the removal of certain individuals, they would not result in a nationwide, programmatic halt on all removals under the Proclamation. The orders thus uniquely thwart the government’s foreign-policy goals.

Thus, the Supreme Court’s ruling gives the Trump administration what it wants — protection against “nationwide, programmatic halt on all removals under the Proclamation”.

I am not going to address here the merits of the Supreme Court’s ruling that habeas proceedings are the sole available recourse for aliens subject to detention and removal pursuant to the AEA except to note that President Trump-nominated Justice Amy Coney Barrett joined that part of the dissent of Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson calling the Court’s conclusion to be “dubious” and stating that “at the very least, the [legal] question is a thorny one”. One could speculate that the Court’s unsigned per curiam opinion was an attempt by Chief Justice John Roberts to avoid open inter-branch warfare set off by the dispute as to whether the Trump administration purposefully violated one of U.S. District Court Judge James Boasberg’s temporary restraining orders.

The Bad News for the Trump Administration

Remember that the ACLU’s Lee Gelernt stated that “the Supreme Court said individuals must be given due process to challenge their removal under the [AEA]”. What the Court concluded was that:

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.” [quoting from the Court’s decision in Ludecke]. … “It is well established that the Fifth Amendment entitles aliens to due process of law” in the context of removal proceedings [quoting from the Court’s 1993 decision in] Reno v. Flores. … So, the detainees are entitled to notice and opportunity to be heard “appropriate to the nature of the case.” [quoting from the Court’s 1950 decision in] Mullane v. Central Hanover Bank & Trust Co. … AEA detainees must receive notice after the date of this order that they are subject to removal under the [AEA]. 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.

[T]oday’s order … confirm[s] that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal.

In his concurring opinion, Justice Brett Kavanaugh emphasized that “Importantly, as the Court stresses, the Court’s disagreement with the dissenters is not over whether the detainees receive judicial review of their transfers — all nine members of the Court agree that judicial review is available.” (Emphasis in original.)

And, in their dissent, Justices Sotomayor, Kagan, Jackson, and Barrett put it less gently:

The Court’s order today dictates, in no uncertain terms, that “individual[s] subject to detention and removal under the AEA [are] entitled to ‘judicial review’[”]… Therefore, under today’s order, courts below will … ask, for example, whether any given individual is in fact a member of Tren de Aragua. Even the Government has now largely conceded that point.

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.”… 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.

The dissenters also ominously stated that “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.”

To paraphrase Bob Dylan, I am not sure this is what the Trump administration wants, and I am not sure this is what the Trump administration needs.

It is true the Supreme Court noted that “The detainees’ rights against summary removal … are not currently in dispute. The [Trump administration] expressly agrees that ‘TdA members subject to removal under the [AEA] get judicial review.’” And it is true that Acting Solicitor General Harris stated in the Trump administration’s Reply that:

• This case is not about whether TdA members subject to removal under the [AEA] get judicial review; they obviously do.

• [T]he government acknowledges that the five named plaintiffs would have ample opportunity to challenge their designations under the AEA if they filed habeas petitions in Texas instead of pressing a misbegotten D.C. class action.

• [A]ll agree individuals “may bring habeas claims” to “test the legality of alien-enemy detention,” including their designation as alien enemies.

But earlier in the litigation the Trump administration did not so clearly embrace a right to judicial review. In its pleadings before the District Court, the administration at points seemed to intimate that “TdA members subject to removal under the [AEA]” very possibly were entitled to no judicial review whatsoever. The Defendants’ Motion to Vacate Temporary Restraining Order (Motion) argued that “the [District] Court lacks jurisdiction because the presidential actions they challenge are not subject to judicial review, as the D.C. Circuit has long and squarely held. [citing the 1946 decision in Citizens Protective League v. Clark]. … And to the extent any review were available, it would be through habeas proceedings.” (Emphasis added.) Further, “Unreviewable means unreviewable. It leaves no room for judicial review, much less sweeping national injunctions. At most, a plaintiff seeking to challenge application of an AEA proclamation would be challenging the legality of detention, a habeas claim that is limited in scope.” (Emphasis added.)

On the other hand, the Motion filed with the District Court did state that “Courts have … limited their review in prior challenges to just a few, very narrow questions that sound in habeas: ‘the construction and validity of the statute’; whether, when relevant, there is a ‘declared war’; and whether the ‘person restrained is an enemy alien fourteen years of age or older.’” (Quoting the Supreme Court’s decision in Ludecke.) And the Defendants’ Opposition to Motion for Preliminary Injunction (Opposition) filed with the District Court stated that:

• [A]liens who are deemed to fall within the scope of the Proclamation may file a petition for habeas challenging that designation.

• [T]hat is not to say judicial review is wholly unavailable in the context of the AEA. Rather, plaintiffs may bring individual claims regarding whether a proclamation has been properly applied against them. Ludecke … acknowledged that “the question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may” be “reviewed by the courts.”… [Emphasis in original.]

• The existence and availability of a habeas remedy to challenge the alien-enemy determinations at issue here is fatal to Plaintiffs’ APA challenge. … [H]abeas is an “adequate remedy” through which a Plaintiff can challenge the applicability of the Proclamation to himself, and, thus, whether he may be detained and removed under the Proclamation.

In any event, now that everyone unambiguously agrees that there is at least some level of judicial review, how might this impact the Trump administration’s future use of the AEA? As I mentioned, Acting Solicitor General Harris wrote that “[W]hile habeas proceedings could theoretically delay or prevent the removal of certain individuals, they would not result in a nationwide, programmatic halt on all removals under the Proclamation.” But I think the decisive questions (thanks to my colleague Todd Bensman for prompting me to ask them of myself) are 1) to what extent will a slew of habeas proceedings “delay or prevent the removal” of aliens under the AEA who have been designated by the president as alien enemies, and 2) to what extent will such delay or prevention erase the advantages to the administration of “summary” removal under the AEA as compared to removal proceedings under the Immigration and Nationality Act?

The answers will depend on two factors. First, how expansive will judicial review be in habeas proceedings? The Supreme Court’s dissenters assumed it that it will encompass both whether 1) the alien at issue is an enemy alien as designated by the president, and 2) the Trump administration has satisfied the AEA’s statutory prerequisites that there has been “any invasion or predatory incursion … perpetrated, attempted, or threatened against the territory of the [U.S.]” and that the invasion or incursion was perpetrated, attempted, or threatened by “any foreign nation or government”. The dissenters concluded that “under [the Court’s] order, courts below will probe, among other things, the meaning of an ‘invasion’ or ‘predatory incursion,’ … and ask, for example, whether any given individual is in fact a member of [TdA]”. However, the Trump administration argued that the only legitimate subject for judicial review in habeas proceedings is whether the alien is in fact an enemy alien as designated by the president (in the context of Proclamation 10903, whether the alien is a “Venezuelan citizen[] 14 years of age or older who [is a] member[] of TdA … and [is] not actually naturalized or [a] lawful permanent resident[] of the [U.S.]”).

The majority opinion did not precisely answer the question, advising only that judicial review would be of “questions of interpretation and constitutionality” of the AEA as well as whether an alien actually is a member of the class of enemy aliens designated by the president.

In the Trump administration’s Opposition filed with the District Court, it argued that “As for whether the [AEA’s] preconditions are satisfied, that is the President’s call alone; the federal courts have no role to play.” The administration further argued that:

The President’s determination that an “invasion” or “predatory incursion” has occurred under the AEA is a nonjusticiable political question, just like the President’s determination to trigger the Constitution’s Invasion Clause (Article IV, section 4). See [the Ninth Circuit’s 1997 decision in] California v. United States … (collecting cases). Any challenge to that determination is therefore foreclosed.

[Additionally,] there are no manageable standards that would permit a court to assess exactly when hostile entry and criminal and violent acts within the [U.S.] by aliens constitute an “invasion” or “predatory incursion” for AEA purposes. … The Constitution simply provides no basis for a court to determine when this AEA trigger has been met, and thus there is no basis for second-guessing the policy judgment by the Executive that such an “invasion” or “predatory incursion” is occurring.

And the Opposition also stated that:

Plaintiffs’ fundamental argument seems to be that other individuals do not agree with the President’s determination that TdA and the state of Venezuela are sufficiently intertwined [so that any invasion or incursion perpetrated, attempted, or threatened by TdA is in fact attributable to the government of Venezuela] to justify invocation of the AEA. … Yet the President is entitled to examine the available evidence and intelligence estimates and make a final determination based on his own assessment.

I will evaluate in a subsequent blog post what the scope of judicial review in habeas proceedings should be. But if courts determine that judicial review in each habeas proceeding may encompass the question of “whether the [AEA’s statutory] preconditions are satisfied”, this will obviously greatly increase the complexity of such proceedings and their duration.

Additionally, even under the scope of judicial review as the Trump administration advocates for, each alien will be able to claim that they do not in fact meet the definition of enemy alien set forth in President Trump’s proclamation. If the government will have to prove to the satisfaction of the court in each case that an alien is in fact a member of TdA, this will also obviously greatly increase the complexity of such proceedings and their duration. Already, plaintiffs have claimed that the government has mistakenly determined them to be members of TdA. Justice Sotomayor’s dissent asserts that:

Plaintiff J. G. G. … had no chance to tell a court that the tattoos causing DHS to suspect him of gang membership were unrelated to a gang. … He avers that he is a tattoo artist who “got [an] eye tattoo because [he] saw it on Google” and “thought it looked cool.”… Plaintiff G. F. F., too, was denied the chance to inform a court that the Government accused him of being an “associate/affiliate of Tren d[e] Aragua” based solely on his presence at a party of strangers, which he attended at the “insistence of a friend.”

As I have suggested, the administration could save itself a lot of trouble by simply declaring any Venezuelan native, citizen, denizen, or subject who is 14 and older and not a naturalized U.S. citizen to be an enemy alien. Then there would be no need for it to demonstrate an alien’s membership in TdA.

Finally, I should note that the Trump administration argued in its Opposition filed with the District Court that “Although aliens … may file a petition for habeas challenging th[eir] designation [as alien enemies] … nothing requires the government to delay removal to permit access to habeas on the alien’s preferred timeline.” Of course, as I mentioned, the Supreme Court has ruled to the contrary:

AEA detainees must receive notice after the date of this order that they are subject to removal under the [AEA]. 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.

Justice Sotomayor alleged in her dissent that:

[T]he Government ushered the named plaintiffs onto planes along with dozens of other detainees, all without any opportunity to contact their lawyers, much less notice or opportunity to be heard. …

The Government’s plan, it appeared, was to rush plaintiffs out of the country before a court could decide … whether these individuals were, in fact, members of [TdA].

Assuming for the sake of argument that Justice Sotomayor’s contentions are true, the government’s actions make sense if it believed that aliens designated as enemy aliens pursuant to the AEA were entitled to absolutely no judicial review. However, if the government believes, as Acting Solicitor General Harris has told the Supreme Court it does, that aliens designated as enemy aliens and slated for removal do have the right to contest the correctness of their designation, it would not make sense for the government to attempt to remove them before their having the opportunity to do so.