No clear winner in Supreme Court's Alien Enemies Act ruling

The Supreme Court ruled Monday that the Venezuelan immigrants accused of belonging to a gang and slated for deportation by the Trump administration have the right to a judicial hearing before they can be sent out of the country.

The court split 5-4 on where the hearings should be held and under what legal principle. The conservatives, minus Justice Amy Coney Barrett, said the Venezuelans must file petitions for habeas corpus in Texas, where they are being held. Barrett and the three liberal justices would have allowed the detainees’ lawsuit to continue in Washington, D.C., where it was filed. Either way, the men will get their day in court to argue that it is unlawful to deport them under the Alien Enemies Act.

The most important thing to understand about the court’s decision is that it vindicates the rule of law. As Justice Sonia Sotomayor emphasized in her dissent, "all nine Members of this court agree" that the detainees must have judicial review.

Sotomayor went on to warn the Trump administration that under the ruling, "the government cannot usher any detainees, including plaintiffs, onto planes in a shroud of secrecy, as it did on March 15, 2025." The date was a reference to some 261 Venezuelans who were sent to a maximum-security prison in El Salvador despite an oral ruling from the bench by a federal judge stating they could not be deported and that planes carrying them must be turned around.

She added that the Trump administration could not take advantage of any gap between the court’s rejection of the DC case and the initiation of habeas proceedings in Texas to try to kick out the Venezuelans, "as it promised the D. C. Circuit it would do."

Sotomayor didn’t stop there. In a section of the dissent that Barrett didn’t join, she also criticized the majority for disregarding "the Government’s attempts to subvert the judicial process throughout this litigation."

The court did not rule on the constitutionality of Trump’s use of the Alien Enemies Act. The issue on which the justices split 5-4 was a technical but potentially important one: could the Venezuelans pursue their claim against deportation in federal court in Washington through a normal lawsuit, or must they seek review of their actual detention, which under the rules of habeas corpus can only be done in the district where they are being held.

This might matter to the detainees since the D.C. federal court is more moderate than its conservative counterpart in Texas. (Ditto for the U.S. Court of Appeals for the DC Circuit compared to the Fifth Circuit with jurisdiction over Texas.)

But another reason the split matters is how the case got to federal court in Washington in the first place. Concerned they were about to be detained and deported based on the Alien Enemies Act, the immigrants went to court before they were grabbed. At that point, they didn’t know where they would be detained en route out of the country. And they were smart to do so. The 261 Venezuelans who were detained but didn’t file a suit in advance of being arrested were deported fast. Their efforts to get a federal judge to halt their deportation failed insofar as the Trump administration understood (or willfully misinterpreted) the judge’s order not to deport them. Returning them to the U.S. will be a tough legal fight, even if the judge holds the Trump administration in contempt.

The reason all this matters for future cases is because, in the majority’s view, you can apparently only challenge the Alien Enemies Act by filing a habeas petition when you are actually detained, future detainee-deportees may indeed be ushered onto planes "in a shroud of secrecy" and sent out of the country before they can challenge the legality of their deportation. Put another way, even though the majority held that these detainees must be heard in court, the Trump administration now has an even more detailed road map to avoid such hearings.

Both the majority and dissent agreed that for now, the court would not address the underlying question of whether the deportations are legal. But the majority did drop an ominous hint. The unsigned opinion noted that the act "largely precludes judicial review," allowing only review "necessary to vindicate due process rights."

As a matter of law, this sentence does not dictate that the conservatives will ultimately uphold the use of the Alien Enemies Act. Formally speaking, if the law cannot be used to deport people from countries with whom we aren’t at war; and if these particular Venezuelans aren’t gang members, judicial review would still be necessary to vindicate their due process rights. Chief Justice John G. Roberts, who joined the conservatives, might conceivably still block such deportations when the issue eventually does reach the Supreme Court.

Yet Roberts likes to use what he considers prudence to avoid overturning executive action. He could try to avoid confrontation with the Trump administration by ultimately holding that the court cannot ask, under the law, whether the U.S. is actually at war with the enemy. The language of judicial restraint used here ("largely precludes judicial review") could foreshadow that result.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of "To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."