It’s unsurprising that noted legal scholar and press secretary Karoline Leavitt, took to Fox News to echo Dear Leader’s proclamation of a great victory. After all, the per curiam decision was a very long four pages. But one would have suspected a Yale law school grad to have the fortitude to wade through all four pages, making the vice president’s reaction somewhat sad.

The Supreme Court today rejected the idea that far left judges in DC can overrule President Trump’s immigration enforcement.

This is a major loss for the lunatics and a major win for the American people.

Onward!

Except that’s not even remotely what the Supreme Court did, which should have been obvious even to J.D. Vance, whose eyes are clouded with visions of future relevance. Rather, the Supreme Court vacated the temporary restraining orders not because they were wrong, but because the 5-4 majority held that the habeas corpus petitions were brought in the wrong venue.

Regardless of whether the detainees formally request release from confinement, because their claims for relief “‘necessarily imply the invalidity’ ” of their confinement and removal under the AEA, their claims fall within the “core” of the writ of habeas corpus and thus must be brought in habeas. For “core habeas petitions,” “jurisdiction lies in only one district: the district of confinement.” The detainees are confined in Texas, so venue is improper in the District of Columbia. As a result, the Government is likely to succeed on the merits of this action. (Cleaned up.)

On its face, this ruling is a win for the Trump administration. It vacates the TRO. It requires a new action to be commenced, and it requires that the action be commenced in Texas, which is understood to be a more conservative, less accommodating, jurisdiction than D.C., even though the Fifth Circuit has twice ruled already that “illegal migration and drug smuggling do not qualify as ‘invasion’ under the Constitution.” Whether the Court is right on the legal question of venue is unclear, but while the Court may be wrong, it is nonetheless final.

This small victory for Trump, however, comes at the expense of a far greater victory for due process.

Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to “‘judicial review’” as to “questions of interpretation and constitutionality” of the Act as well as whether he or she “is in fact an
alien enemy fourteen years of age or older.” The detainees’ rights against summary removal, however, are not currently in dispute. The Government expressly agrees that “TdA members subject to removal under the Alien Enemies Act get judicial review.” “It is well established that the Fifth Amendment entitles aliens to due process of law” in the context of removal proceedings. So, the detainees are entitled to notice and opportunity to be heard “appropriate to the nature of the case.” More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

Pretty much everything they were denied by being snatched in the middle of the night and shipped off to El Salvador without notice and an opportunity to be heard was unlawful. There is a right to challenge the interpretation and constitutionality of the AEA and its invocation. There is a right to challenge whether any person is removable as an enemy under the proclamation. Most significantly, there is a duty to notify anyone the government believes to be subject to the proclamation that they are subject to removal so that they can challenge the government before they get renditioned to a foreign land.

But then comes Justice Sonia Sotomayor’s dissent, which not only criticizes the Court’s use of the shadow docket to rule on such a consequential issue, but the majority’s failure to face up to the scheme pulled by the Trump administration to subvert due process here.

What if the Government later determines that it sent one of these detainees to CECOT in error? Or a court eventually decides that the President lacked authority under the Alien Enemies Act to declare that Tren de Aragua is perpetrating or attempting an “invasion” against the territory of the United States? The Government takes the position that, even when it makes a mistake, it cannot retrieve individuals from the Salvadoran prisons to which it has sent them. See Defendant’s Memorandum of Law in Opposition in Abrego Garcia v. Noem, No. 25–cv–951 (D Md., Mar. 31, 2025), ECF Doc. 11, at 7–9. The implication of the Government’s position is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. History is no stranger to such lawless regimes, but this Nation’s system of laws is designed to prevent, not enable, their rise.

Essentially, the majority’s vacatur of the TRO, enabling resumption of the mass rendition of people whose removal remains unproven and unchallengeable under the government’s scheme, rewards the government’s lawlessness (as agreed by all nine justices) by allowing the perpetuation of the Catch-22 it created.*

Against the backdrop of the U. S. Government’s unprecedented deportation of dozens of immigrants to a foreign prison without due process, a majority of this Court sees fit to vacate the District Court’s order. The reason, apparently, is that the majority thinks plaintiffs’ claims should have been styled as habeas actions and filed in the districts of their detention. In reaching that result, the majority flouts well-established limits on its jurisdiction, creates
new law on the emergency docket, and elides the serious threat our intervention poses to the lives of individual detainees.

Knowing that its ruling will result in the government’s unlawful denial of due process and the certainty that at least some of the people taken to El Salvador were wrongly and unlawfully removed, the majority vacated the TRO anyway. And inexplicably did so the day before a hearing to ascertain whether the government refused to abide the order of the District Court.

*The ruling also has the potential to empower ICE to play whack-a-mole by moving people from place to place, prison to prison, to impede their establishing venue in any location. Would they be above such shenanigans designed to defeat due process rights? I think not.