The Supreme Court ruled on Tuesday that detainees held for removal by the Trump administration under the Alien Enemies Act are, in fact, owed due process, the right to know that they are being removed and given the opportunity to contest their detention and removal. While this should be obvious, it is nonetheless a positive development for the court to affirm that the Constitution still exists.
However, an unsigned majority decision by five conservative justices severely undercut the ability of these detainees to access the relief needed for them to get a fair hearing.
detainees cannot bring a class-action suit challenging their designation as “alien enemies” but may only challenge their detention individually through habeas petitions in the jurisdiction where they are held.
This decision by Justices John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh to narrow the availability of judicial review and relief for this particular class of detainees should be seen as a sign of bad things to come. It is a harbinger that the court doesn’t see President Donald Trump’s policy to pick people up off of the street, claim without due process (or, in many cases, evidence) that they are “alien enemies” and render them to a foreign torture prison as a serious threat to the Constitution or the rule of law.
Justice Sonia Sotomayor summed up the actual threat of Trump’s extraordinary rendition policy succinctly in a dissent joined by Justices Elena Kagan, Ketanji Brown Jackson and, in part, Amy Coney Barrett.
“The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal,” Sotomayor wrote. “History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise.”
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