Judge Boasberg’s TRO is vacated, but the Venezuelan aliens will start anew in Texas and the Court stresses that they are entitled to due process of law.
It should be strange, yet it was utterly predictable to find President Trump chirping last night as he’d won a great victory after the Supreme Court unanimously ruled that his taking aliens who were facing lawful proceedings, loading them onto planes, and transferring them to a foreign country’s notorious prison — all without notice and an opportunity to be heard in objection to these deportations — profoundly violated the Constitution he is sworn to uphold.
The Court’s unanimity on the important constitutional point is obscured by its 5–4 divide on procedure — i.e., the question of where to sue.
Hence, in endeavoring to make a silk purse of this sow’s ear, the president is aided by the stridency of Justice Sonia Sotomayor’s dissent, joined by her two fellow progressives, Justices Elena Kagan and Ketanji Brown Jackson, and in part by conservative Justice Amy Coney Barrett. For once, I don’t blame Justice Sotomayor for her outrage. Still, the tone belies the narrow technicality of the Court’s divide.
The nine justices are actually in lockstep on the bottom line that the executive branch must heed the Constitution and afford due process of law to those it dubiously accuses of being “alien enemies.”
The disagreement is that the majority — in an unsigned per curiam opinion joined by five conservative justices, Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — concluded that the aliens must bring their challenges in habeas corpus, which means they must sue in the place where they are being confined, which is (and was for the hundreds already deported) Texas. Because they sued in Washington, D.C., which the majority found was the wrong forum, the aliens’ suit and the resulting temporary restraining order (TRO) imposed by Judge James Boasberg must be dismissed.
By contrast, the dissenting justices agreed with Judge Boasberg and the majority of the D.C. Circuit’s three-judge panel that upheld the TRO: The lawsuit was properly brought in Washington under the Administrative Procedure Act (APA).
The majority’s final word on this procedural disagreement means the aliens will have to start over again – inundating a Texas federal court with hundreds of individual habeas claims, rather than continuing with a single class action lawsuit in Washington. They will do so, however, with a sharp admonition that the Trump administration, before any further deportations, must give notice to anyone it claims is an alien enemy (under the 1798 Alien Enemy Act (AEA), see Section 21 of Title 50, U.S. Code), allowing that alien an opportunity to file a habeas corpus action in the district where the alien is then confined.
To understand the gist of both the Court’s agreement and its technical dispute, I’d suggest focusing on Justice Kavanaugh’s short concurring opinion and the two parts of Justice Sotomayor’s dissent (Parts II and III-B) in which Justice Barrett joined. As Kavanaugh puts it:
Importantly, as the Court stresses, the Court’s disagreement with the dissenters is not over whether the detainees receive judicial review of their transfers — all nine Members of the Court agree that judicial review is available. The only question is where that judicial review should occur.
Sotomayor makes this point more emphatically. First, the “Court’s order dictates, in no uncertain terms, that individuals subject to detention and removal under the [AEA] are entitled to judicial review,” on questions pertaining both to the AEA’s constitutionality and applicability, and to whether the person is in fact an alien enemy under the president’s proclamation. Second:
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.]
The technical dispute is: habeas corpus versus the APA. For what it’s worth, I believe the dissenters, including Justice Barrett, have the better of the argument (laid out in Section III-B of Sotomayor’s dissent).
The majority concluded that a claim against deportation fits into the core of habeas, which focuses on allegedly unlawful detention. The dissent counters that this is illogical since the aliens were already in detention (based on immigration law and criminal law proceedings) before President Trump’s AEA proclamation was issued; they are not challenging that detention — only their expulsion to a foreign country’s prison. Moreover, the conclusion that the availability of habeas renders the APA unavailable is not as cut-and-dried as the majority suggests. (The dissent: “Indeed, in the mid-20th century, this Court repeatedly said that habeas and APA actions were both available to noncitizens challenging their deportation orders.” [Citations omitted.])
Given that this was at least a close call, I’m chagrined that a majority of the Court decided to reward the Trump administration’s furtive transport of aliens away from their home districts and its forum shopping — i.e., detaining them in a federal Circuit where the Trump administration prefers to litigate. (See my column last week on this unsavory practice.) Of course, that is not to ignore that, in the same forum-shopping manner, the ACLU filed its lawsuit on behalf of the aliens in Washington, which runs heavy with judges appointed by Democratic presidents.
On the other hand, the Court’s ruling will hopefully have the effect of promoting the rule of law. The president’s social media post after the decision was announced indicates that he will take a face-saving “win” – the case in front of Judge Boasberg is, for the most part, dismissed. In the meantime, the Trump administration, including the Justice Department, will henceforth have to comply with due process law.
Note: I said the case before Boasberg was “for the most part” dismissed. The dismissal of the aliens’ case and vacating of the TRO does not eviscerate Boasberg’s inquiry into whether Justice Department lawyers or other administration officials misled the court and, potentially, should be held in contempt. That inquiry, I presume, will continue.