Yesterday, in a somewhat insignificant 7-2 decision, the United States Supreme rejected the Trump administration’s request to immediately resume deportations of Venezuelan nationals under the Alien Enemies Act (AEA). Instead of ruling, once and for all, that the Fifth Amendment prevents Trump’s 24-hour notice nonsense, SCOTUS remanded the matter to a federal appeals court for further review.
The ruling does not resolve the core constitutional issues involved in these deportations. If one looks closely, it does seem to imply (finally) that the Fifth Amendment’s Due Process Clause applies in these cases. However, the Justices provided no clue about how they might rule on the limits of executive authority under the AEA and the ancient law’s application to non-war situations.
The Due Process Clause of the Fifth Amendment declares that no person shall “be deprived of life, liberty, or property, without due process of law.” Notice: The clause refers to “person,” not “citizen.” Noncitizens on U.S. soil are entitled to basic constitutional protections, including due process in removal proceedings.
In this case, the Supreme Court’s opinion did reinforce that principle by criticizing the administration’s 24-hour removal notice period as inadequate for a potential deportee to mount a defense to deportation. The Court stated this “surely does not pass muster,” indicating a clear expectation that noncitizens be given meaningful notice and an opportunity to respond. That is a positive step to resolving this Trump-created mess.
The AEA, part of the Alien and Sedition Acts of 1798, grants a president wartime authority to detain or deport nationals of enemy nations. That’s war, as in World War I or 2. The law does not apply to modern immigration policy, [but] The Trump administration seeks to apply it to Venezuelan nationals, citing national Security concerns.
Let’s be clear: America is not at war with Venezuela. The country is not a declared enemy of the United States and using the AEA in peacetime, against asylum seekers or long-residing immigrants, is improper.
The Supreme Court’s remand sends the case back to the Court of Appeals to decide whether the AEA can be constitutionally applied to Venezuelans under current circumstances and whether due process standards are being met.
Hopefully, that court will rule that the government has no deportation or detention peacetime authority under the AEA, and is obligated to extend notice periods, provide access to legal counsel, and correctly apply Fifth Amendment due process to potential deportees.
Ultimately, the case will likely return to the Supreme Court, where the nine Justices will rule, definitively, that application of the AEA, in peacetime, is unconstitutional and that all deportees in America, citizens or not, have a right to Fifth Amendment-style due process.
The Supreme Court mentioned due process rights in its unsigned opinion, but did not definitively rule on the issue. The ruling is a cautious cop-out, maintaining the status quo, and shifting decision-making responsibility to a lower court. SCOTUS did not invalidate application of the AEA outright and left Venezuelan nationals in limbo.
However, the High Court did signal a preference to constitutional guarantees over unchecked executive deportation powers. Does immigration intersect with national security at a level sufficient to invoke the AEA? I don’t think so. SCOTUS might soon be the last line of defense for the idea that all people—citizen or not—are owed due process under the law.
Mark M. Bello is an attorney and author of 9 Zachary Blake Legal Thrillers and other legal themed novels and children’s books. For more information, please visit https://www.markmbello.com
