Supreme Court Tightens Scope of Summary Deportation Proceedings

Roger Griswold and Matthew Lyon. Cartoon depicting a fight in Congress regarding the Alien and Sedition Acts, 1798.

The History

In 1798, the United States was a roiling sea of political division. Federalist influence was fading, and Democratic-Republicans were taking center stage as the dominating movement. Amidst these tensions, President John Adams—a devout Federalist—signed a series of laws known as the Alien and Sedition Acts. These laws boosted the Federalist platform by vesting them with a statutory arsenal to stall the growing prevalence of Democratic-Republican ideologies and to suppress the dissemination of public criticism against the Adams administration.

One such law was the Alien Enemies Act, which vests the President with broad discretion to instruct the federal government to effectuate deportation proceedings against foreign subjects. On the campaign trail, Donald Trump repeatedly voiced his support for these provisions, promising to carry out “the most spectacular migration crackdown” in history. While these provisions have traditionally been reserved for wartime, the Trump administration seeks to extend their scope to include domestic emergencies, particularly mass immigration.

The Facts

Last month, President Trump signed and sealed Proclamation 10903, ordering the removal of members of the Tren de Aragua, a violent Venezuelan gang. This order follows a series of executive actions to spur the removal of illegal immigrants under the Alien Enemies Act. In response to the Proclamation, a group of Venezuelan deportees filed a lawsuit in federal court in an attempt to stall their removal under the order; they argue that they are entitled to judicial review and contend that their claims must be heard in a court of proper jurisdiction.

A federal district court issued an order to halt the deportations and allow the Venezuelan deportees additional time to challenge the process through a proper forum. On appeal by the government, a federal appellate court refused to lift the injunctions, citing the fundamental nature of due process. But last week, the Supreme Court spurned that decision and lifted the injunctions. In its per curiam opinion, the Court held that while the deportees are entitled to “notice and opportunity” in a proper forum, their lawsuit must be in the form of a habeas corpus petition.

Image Provided Courtesy of The Associated Press.

The Arguments

Both the United States and the Venezuelan deportees agree that immigrants are entitled to due process during removal proceedings under the Alien Enemies Act. Conversely, according to the Supreme Court, “[t]he only question is which court will resolve that challenge.” In its 5-4 decision, the Court unequivocally confirmed that “venue lies in the district of confinement” and must be challenged through habeas corpus proceedings. Contrary to mainstream narratives, this decision does not infringe immigrant liberties but expands them.

The Brennan Center for Justice, a left-leaning organization, became outspoken critics of the decision after it was published. “This ruling could effectively strip thousands of people of their constitutional right to due process,” said Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center. In a subsequent statement, Elizabeth vaguely hinted that the Court “left ample room for gamesmanship,” implying that the Trump administration will continue to find loopholes to effectuate its sweeping immigration policies.

In a social media post following the decision, President Trump enthusiastically praised the Supreme Court for upholding the “Rule of Law…by allowing a President, whoever that may be, to be able to secure our Borders, and protect our families and our Country, itself.” Republicans abroad echo the beneficial policy effect of this decision and place full support behind the Supreme Court as it continues to deliver overwhelming victories to the Trump administration. While the bent framework of removal proceedings remains to be ironed out, judicial review will become a standard feature for defining the future of deportation.