Yesterday evening, the Supreme Court (in Trump v. J.G.G.) ruled by a vote of 5 to 4 that a district judge in D.C. did not have jurisdiction to issue temporary restraining orders that barred the Trump administration from deporting Venezuelan nationals that it believed to be members of the Tren de Aragua gang. At the same time, all nine justices agreed that Venezuelan nationals whom the Trump administration sought to deport via President Trump’s Alien Enemies Act proclamation had a due-process right under the Fifth Amendment to “be afforded [notice] 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.” The per curiam opinion also suggests—and the dissenters agree—that detainees may challenge the legality of Trump’s AEA proclamation.
I’ll briefly summarize the ruling and then explain why it might be best understood as a savvy effort at judicial statesmanship.
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The majority ruling is set forth in three pages of text. Although styled per curiam, it was surely written by Chief Justice Roberts. The four justices who joined it were Thomas, Alito, Gorsuch, and Kavanaugh.
The per curiam opinion holds that the claims for relief brought by plaintiff detainees “fall within the ‘core’ of the writ of habeas corpus and thus must be brought in habeas.” Jurisdiction for core habeas petitions lies only in the district of confinement. Because the detainees are confined in Texas, venue was improper in the District of Columbia. So the district judge in D.C. did not have jurisdiction over their claims. Because the government established that it was likely to prevail, it was entitled to a stay of the district court’s TROs.
The per curiam opinion might simply have stopped there. But in a long paragraph on page 3, it recites that it “is well established that the Fifth Amendment entitles aliens to due process of law in the context of removal proceedings” (cleaned up), and it then declares:
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. [Emphasis added.]
Justice Sotomayor wrote a 17-page dissent, joined in whole by Justices Kagan and Jackson and in part by Justice Barrett. Sotomayor argues in Part III-A (a part not joined by Barrett) that the TROs are not appealable. (The ill-founded rule that TROs are generally not appealable seems to be morphing into a rule that appellate courts have broad discretion to review them.) In Part III-B (joined by Barrett), she labels as “dubious” the majority’s conclusion that plaintiffs’ claims must be brought in habeas, and she argues that this “thorny” question should not be resolved on a hurried basis in on an emergency application.
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On why the per curiam might best be regarded as an exercise of judicial statesmanship:
1. The immediate and most prominent effect of the ruling is to deliver a victory to the Trump administration in this particular piece of litigation. The Trump administration has loudly celebrated its short-term victory. The Court has thus removed itself (at least temporarily) from the crosshairs of the administration’s attacks.
2. The per curiam opinion in fact delivered a potentially big loss to the Trump administration. The most aggressive voices in the Trump administration had been asserting that the courts had no role in reviewing Trump’s AEA proclamation and deportations made pursuant to it. The per curiam emphatically rejects that assertion. Every potential deportee has a due-process right to challenge his deportation in a habeas proceeding, and the Administration must provide notice to the detainee in a way that ensures that the habeas opportunity is a real one.
3. On the other hand, the Trump administration may now pick a favorable forum for habeas cases by detaining deportees in districts (e.g., Southern District of Texas and Western District of Louisiana) that it expects to be deferential to it in habeas proceedings and whose rulings will be reviewed by an appellate court (the Fifth Circuit in these examples) that it regards as much friendlier than the D.C. Circuit.
4. The Court defers spelling out exactly what process is due the detainees. It also leaves open the grounds on which the legality of Trump’s AEA proclamation may be challenged and the standards by which such challenges shall be decided.
5. One big question is what happens if the Trump administration refuses to provide detainees adequate notice, ships them abroad, and asserts that the federal courts no longer have jurisdiction to entertain their claims. We might get the Court’s answer to that question—or at least a preview of its answer—very soon, as it is currently considering (in Abrego Garcia v. Noem) the Trump administration’s challenge to an order calling for it to ensure or facilitate the return of an individual it concedes was wrongly deported because of an administrative error. However the Court decides this particular matter, I think it’s clear that the Court will not allow the Trump administration to thwart the habeas process.