Supreme Court ruling on Alien Enemies Act raises new due process concerns for migrants

(CNN) — The Supreme Court ruling that permits President Donald Trump to use a centuries-old wartime authority to speed deportations is drawing sharp criticism from immigration experts who fear the decision could erode migrants’ due process rights to have their cases reviewed before they’re sent to a foreign prison.

The court’s 5-4 ruling Monday night requires those challenging Trump’s use of the Alien Enemies Act to rely on a complicated and rarely successful legal process known as habeas corpus, and to potentially file those claims in some of the most conservative federal courts in the nation.

The lack of clarity around how people facing deportation under the 1798 law will be notified and whether they’ll be able to access a lawyer to help them navigate that process is prompting questions about whether Trump’s targets under the act will actually receive the due process the Supreme Court majority promised in its unsigned opinion.

“It’s hard enough for fluent English speakers to do this,” said Elora Mukherjee, director of the Immigrants’ Rights Clinic at Columbia Law School. “These are extremely significant barriers.”

Attorney General Pam Bondi said in an interview with Fox News on Tuesday that winning habeas challenges wouldn’t be a heavy lift for the Justice Department.

“It will be a much faster hearing,” Bondi said. “It will be a much smoother, simpler hearing and these people will be deported.”

The Trump administration’s disregard for due process has been a pattern in the legal disputes over his immigration policies. In another case pending at the Supreme Court, the administration conceded it made an error in deporting Kilmar Armando Abrego Garcia to El Salvador last month but is fighting efforts to bring him back to the US.

Chief Justice John Roberts temporarily paused a Monday midnight deadline for his return to the US in order to give the court more time to review the case. The administration has asserted that Abrego Garcia is a “high-ranking” member of the MS-13 gang, a claim that appears to be based mainly on information from what the government says is a “reliable source.”

Immigration advocates have also raised questions about others deported to El Salvador based on claims they are members of the Tren de Aragua gang. Some have claimed they were wrongly suspected of gang activity due to their tattoos.

Heidi Altman, vice president of policy at the National Immigration Law Center, said the practical implications of the court’s Alien Enemies Act ruling are significant given how difficult it is for people being detained to access attorneys.

The court’s opinion, she said, read like it had been written by “someone who hasn’t had their eyes on the reality of the past weeks and the extreme steps this administration is willing to take to get around the very, very few due process protections that currently exist.”

“They’re being handed exactly what they want,” Altman said of the Trump administration. “The very quick erosion of checks and balances.”

Granting a request from the Trump administration, the Supreme Court lifted a lower court order that blocked immigration officials from relying on the Alien Enemies Act to remove alleged Venezuelan gang members. The court stressed that anyone subject to removal under the act is entitled to “an opportunity to challenge their removal.”

In one sense, that was a significant rebuke of the Trump administration, which did not previously offer notice or review before hurrying hundreds of Venezuelan nationals onto planes bound for a notorious prison in El Salvador last month. White House aide Stephen Miller, for instance, has repeatedly asserted that the people deported were not entitled to due process.

But while all nine justices appear to agree that review is required, a majority of the court dramatically limited the practical options.

Groups like the American Civil Liberties Union were attempting to shut down deportations under the act broadly using a federal law that lays out how an administration enacts regulations and other policies. Now, each individual may have to file their own habeas claim and demonstrate that the government’s attempt to deport them is illegal.

And they will have to file those suits where they are being detained, likely in Texas.

Filing successful habeas claims, meanwhile, can be challenging. Years after the 2001 terrorist attacks, the Supreme Court made clear that detainees at Guantanamo Bay could challenge their detention through habeas petitions. But that process quickly ground to a halt in lower courts.

“The real question is whether courts, especially federal courts in Texas, are going to provide the kind of robust, pre-removal process that the majority opinion and Justice Kavanaugh’s concurrence both appear to be envisioning,” said Steve Vladeck, a CNN Supreme Court analyst and professor at Georgetown University Law Center. “If so, then Monday’s ruling may have only a modest effect going forward. But there’s a reason why the Trump administration is fighting so hard to have these issues litigated in Texas and the 5th Circuit.”

‘Life or death consequences’

Dissenting on Monday, Justice Sonia Sotomayor noted that the Venezuelan nationals challenging Trump are not seeking to be released from custody. Rather, they want to argue they are not gang members, are not subject to Trump’s invocation of the Alien Enemies Act and should not be sent to the Center for Terrorism Confinement, or CECOT, in El Salvador.

Requiring them to file individual suits, the court’s senior liberal wrote, “may have life or death consequences.”

“Individuals who are unable to secure counsel, or who cannot timely appeal an adverse judgment rendered by a habeas court, face the prospect of removal directly into the perilous conditions of El Salvador’s CECOT, where detainees suffer egregious human rights abuses,” Sotomayor wrote.

The option for immigration groups to file lawsuits on behalf of all potential deportees, meanwhile, may be limited by a 2022 Supreme Court decision. In that case, a majority of justices ruled that challenges under the Immigration and Nationality Act must be brought individually and not on a class-wide basis.

Whether that applies to the Alien Enemies Act is an open question.

Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute, said that most people facing immigration court proceedings don’t have attorneys. Even if they are able to hire one, the cases can present unique challenges. It’s not always clear where Immigration and Customs Enforcement is holding a detainee, for instance.

“What we’re talking about with these types of cases is a heightened level of difficulty because people are detained,” she said. “Even if you have a lawyer, does your lawyer know where you are?”

While the Supreme Court’s decision will require the government to provide notification to a detainee that the administration may attempt to remove them under the Alien Enemies Act, Altman noted that similar notifications have historically been opaque. Given language barriers and the lack of lawyers, she said, fighting the law through habeas claims will be a challenge.

The American Civil Liberties Union responded to the Supreme Court’s decision with a habeas lawsuit filed in federal court in New York on Tuesday, attempting to block deportations for its clients as well others who potentially could be deported under the law.

The ACLU lawsuit also asked a federal court to certify a class that would allow the case to cover anyone subject to deportation under the Alien Enemies Act.

The law “has only ever been a power invoked in time of war, and plainly only applies to warlike actions,” the group wrote in the suit. “It cannot be used here against nationals of a country – Venezuela – with whom the United States is not at war.”

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