The Supreme Court unanimously held that the Venezuelan detainees cited as alien enemies are entitled to due process in the form of habeas corpus.
On Wednesday, in spinning the Trump administration line that the Supreme Court’s ruling in the Venezuelan deportation case is a big win, White House Press Secretary Karoline Leavitt was asked: Isn’t it true that the Supreme Court held that the aliens in question were entitled to due process? Leavitt answered that this wasn’t “quite true” because the Court had merely said “they were entitled to a habeas petition.”
Sigh . . .
I really don’t want to wade into the debate over whether the White House is speaking with forked tongue or just doesn’t know what the hell it’s talking about. Suffice it to say that entitlement to a habeas petition is entitlement to due process.
Very basically, due process of law is notice and an opportunity to be heard before an impartial tribunal.
The case involves Venezuelan aliens whom the president wants to deport without due process, including hundreds he already has so deported, on the allegations that they are members of the Tren de Aragua gang and that TdA is an alien enemy force engaged in an invasion of or predatory incursion in the United States, as those italicized terms are meant in the 1798 Alien Enemies Act (AEA) (see 50 U.S. Code, Section 21).
To repeat what I related on Tuesday, the case before the Court focused on a temporary restraining order entered by Judge James Boasberg of the federal district court in Washington, D.C. At such a preliminary stage, it was not necessary for the Court to address the substantive merits of the president’s AEA designation.
Instead, there were two preliminary questions before the Court. First, are the aliens entitled to due process to challenge the president’s AEA designation (i.e., do they get into court to challenge both the substantive merits of the AEA invocation and the question whether they are members of TdA)? Second, assuming the aliens are entitled to due process, what procedural vehicle may they use to effectuate their due process rights — an Administrative Procedure Act (APA) lawsuit such as the one they had filed in Washington, or habeas corpus petitions?
On these two questions, the Court held, 9–0, that the aliens are entitled to due process and, 5–4, that the due process challenge must take the form of habeas corpus petitions, not the APA lawsuit before Judge Boasberg.
This is not difficult to understand. A habeas corpus petition is a legal challenge to one’s detention, which is why it has to be brought in the place where a person is being held. (Even though a habeas case is brought against the government, the nominal defendant is usually the warden of the detention facility that has custody of the petitioner.) It sounds trite, but due process is the process that is due. The process that is due to challenge detention is habeas corpus. Ergo, habeas corpus is due process: requiring notice that the government wants to detain a person and giving that person an opportunity to challenge the government’s basis for doing so.
The nuance in the case relates to the second question outlined above, regarding the proper procedural vehicle. That issue came down to whether concept to detention covered the aliens’ deportation. The majority ruled that it did and therefore that habeas corpus was the correct vehicle for vindicating due process. The dissent (which I believe had the better of the argument on this narrow point) reasoned that deportation was not covered by the concept of detention on the facts of this case and therefore that the aliens should be able to bring their due process challenge in an APA suit.
Either way, however, the justices unanimously concluded that the aliens had due process rights — just as Judge Boasberg and the D.C. Circuit had ruled that they did. As my column related, this was most clearly stated in a concurring opinion by Justice Brett Kavanaugh and in a section of Justice Sonia Sotomayor’s dissenting opinion that stressed due process, which was joined by Justice Amy Coney Barrett. (Justice Sotomayor’s dissent was joined in full by her progressive colleagues, Justices Elena Kagan and Ketanji Brown Jackson. Justice Barrett joined only the two brief sections — on due process and on why the APA was available as a due process option). As Sotomayor put it:
The Fifth Amendment requires the Government to afford plaintiffs “notice after the date of this order that they are subject to removal under the Act, . . . within reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” . . . That means, of course, that the Government cannot usher any detainees, including plaintiffs, onto planes in a shroud of secrecy, as it did on March 15, 2025. Nor can the Government “immediately resume” removing individuals without notice upon vacatur of the TRO, as it promised the D. C. Circuit it would do. . . . To the extent the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court. [Brackets and citations omitted.]
It doesn’t get much clearer than that. Certainly, what the Court unanimously held was well understood by Judge Fernando Rodriguez Jr., a Trump appointee to the Southern District of Texas bench. Consistent with the justices’ ruling, Judge Rodriguez issued a temporary restraining order yesterday barring the administration from deporting any Venezuelan detainees until they have an opportunity to litigate habeas claims. Similarly in Manhattan, Judge Alvin Hellerstein (a Clinton appointee) issued an order barring the deportation of two Venezuelans who are being held in the town of Goshen, N.Y., which is in Orange County in the upstate part of the Southern District of New York.
To summarize, then, the Venezuelan aliens alleged to be Tren de Aragua members are getting due process because that is what the Supreme Court ruled they must be given. In lifting Judge Boasberg’s temporary restraining order, the Court did not say that the administration could resume summarily deporting alleged alien enemies to El Salvador. To the contrary, it said that the administration could not do so without first allowing them to seek due process in the form of habeas corpus. And that is why the two federal judges in Texas and New York have now issued temporary restraining orders, just as Judge Boasberg had done.