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The Supreme Court Slaps Back at the Alien Enemies Act...Indirectly for Now [1]

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Date: 2025-05-17

OK, the Supreme Court issued a ruling Friday that greatly limits the Trump administration’s efforts to deport immigrants such as Kilmar Abrego Garcia under the 1798 (yes, you read that right) Alien Enemies Act. Leave aside for the moment the fact the Act only allows deportation of citizens of a “hostile nation or government” when there is a “declared war” or “ any invasion or predatory incursion” of the United States involving that foreign government. The Supremes had other legal fish to fry in the oddly named AARP v. Trump case.

In this case, the notoriously conservative Fifth Circuit Court of Appeals had decided it didn’t have any jurisdiction to overrule the lower-court’s refusal to stop the deportation of the immigrants. This has been one of the Trump administration’s big arguments, that, hey, you the courts have no right to stop us from shipping people out of the U.S.

First SCOTUS said the appeals courts do have the right of review. (Duh, that’s what those courts are for.)

Second, the Supremes said the appeals court has to consider both whether the Alien Enemies Act actually applies to these situations and what sort of due process hearing the immigrants are entitled to (which they got little or none of). The Fifth Amendment to the Constitution states that “no person” (note that applies to everyone, not just citizens) shall be "deprived of life, liberty or property without due process of law" by the federal government. “Due process” means at least an adequate notice and a hearing to argue against the proposed legal action in case the government is wrong for any reason; you know, basic fairness. (I promise not to get into the 1215 Magna Carta here, but this concept has been around a long time.)

Third, even this corrupt Supreme Court held that a court injunction (just a type of court order) stopping Trump administration actions can be issued without having to “certify” (authoritatively define) the class of people the injunction protects. Why, you want to know, does that matter? Well, the day before the Supreme Court held a hearing where the conservative majority indicated it will issue an opinion before the end of this term (roughly the last day of June) disallowing injunctions with nationwide reach. Instead, the conservatives implied that each immigrant threatened with deportation has to become a plaintiff in a lawsuit. That could mean hundreds of lawsuits would need to be filed.

One way around this would be for an injunction to protect a “class” of plaintiffs – such as all immigrants who might face deportation. The problem is that it can take months for a court to “certify” a class, meaning to determine that it’s properly defined; among other things, the court has to decide the class is defined in such a way that all its members are similarly situated. But, if a court can issue an injunction for a class without having to certify the class first, it can act more or less immediately to stop deportations. And the Supremes said that’s exactly what a court can do.

The case has been sent back to the Fifth Circuit for reconsideration, although it’s clear the Supreme Court will hear an appeal on this if the Fifth Circuit strays and the immigrants can’t be deported in the meantime. Interestingly, Justice “Beer Boy” Kavanaugh indicated the Supreme Court should rule on the Alien Enemies Act and due process protections now, rather than waiting.

For more details see The Supreme Court's (Alien Enemies Act) Patience is Wearing Thin, https://www.stevevladeck.com/p/151-the-supreme-courts-alien-enemies.

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