Supreme Court says non-citizens dubbed ‘alien enemies’ can challenge deportations — but in Texas, not DC

Venezuelans in the United States labeled by President Donald Trump as “alien enemies” must be given a chance to challenge their deportations before being expelled from the country, the Supreme Court ruled unanimously Monday.

But the justices, in a 5-4 split, scrapped a trial judge’s order that had imposed a sweeping block on all deportations under Trump’s invocation of the two-centuries-old Alien Enemies Act, a war power meant to guard against foreign invasions.

The decision will shift litigation over the issue from a class-action lawsuit in Washington to federal courts in Texas, where the detainees are being held. There, the detainees can file individual petitions challenging their detentions.

Courts in Texas may not be especially receptive to such petitions. Any appeals will be heard by the 5th Circuit Court of Appeals, the nation’s most conservative federal appeals court.

Still, the Supreme Court’s ruling appears to deal a setback for Trump’s attempt to swiftly deport alleged members of a Venezuelan gang, Tren de Aragua, under powers used only three prior times in U.S. history, most recently in World War II.

Lawyers representing the Venezuelan nationals targeted for deportation have argued that many of them have no gang affiliation — and that the administration’s evidence of any gang ties is scant or nonexistent. The high court’s ruling makes clear that these detainees must be given some due process before they are deported.

In particular, they must be given the chance to “actually seek habeas relief in the proper venue before such removal occurs,” the high court wrote in an unsigned decision, referring to habeas corpus, the term for a challenge to unlawful imprisonment.

The detainees can also make arguments challenging Trump’s novel “interpretation” of the law to cover gang activity, the court said.

Justice Amy Coney Barrett, a Trump appointee, joined the court’s three liberal justices in dissenting from the court’s ruling that the detainees can only challenge their deportations through habeas corpus cases filed where they are being held. Barrett and the three liberals — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — would have left in place the lower-court judge’s blanket, but short-term order blocking the deportations all together.