Supreme Court Rules Against the Alien Enemies Act of 1798

On Friday, 16 May 2025, the Supreme Court issued a ruling by 7-2 majority (Justices Thomas and Alito dissented) that has blocked the Trump administration from deporting Venezuelan illegal immigrants, most of whom have been identified as violent Tren de Aragua (TdA) gang members, being held at the Bluebonnet Detention Facility in Anson, Texas, a small town about 3 hours west of Fort Worth.  The court had previously ordered a stop to the deportations back in April, “until further order of this court” in response to an ACLU lawsuit that challenged Trump’s invocation of the Alien Enemies Act.

The ACLU lawsuit is based on the argument that the first deportees sent to El Salvador were denied “due process” and not given sufficient time to challenge their cases.  SCOTUS, essentially in agreement, expressed their concerns for the right to “due process” and “only 24-hour notice”.

I wrote about the justifications the administration had for invoking the Act back in March.  You can read about it HERE.  The language in the Act clearly does not require any rights to “due process” for “alien enemies”, stating only that they “shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”  I’m not a Lawyer, but I stayed up all night watching Pery Mason reruns.  Typically, legal statutes list every conceivable situation to which the subject law may be applied.  If the intent was to grant court hearings, or some other form of legal proceeding, the law would have included language to state such.  Apparently SCOTUS is suddenly of the mindset that violent criminal illegal aliens who have entered the country with ties to a foreign regime that openly despises the United States, have the same legal protections as the American citizens they have ruthlessly been victimizing.  To me, it sure looks like the Supreme Court is completely rejecting the validity of the Alien Enemies Act of 1798, a duly enacted law passed by Congress and signed by President John Adams, a founding father of this nation, based on a misinterpretation.

This case is not over, however.  The Supreme Court has returned it to the Fifth Circuit Court of Appeals, based in New Orleans, for further proceedings.  The Fifth Circuit had previously ruled that the detainees lacked jurisdiction for their appeals, and this SCOTUS ruling vacates that judgment. 

It is important to distinguish the difference between legal jurisdiction and complete jurisdiction.  Jurisdiction is the term usually associated with legal jurisdiction, in that persons are expected to follow all federal, state, and local laws and regulations, whether they are citizens, or not.  That’s the common perception, but it’s not the whole truth.  Complete jurisdiction infers that a subject individual owes his allegiance to his/her sovereignty, wherever he/she may be physically located.  In other words, a foreign national, present within the United States, legally or illegally, is not “subject to the jurisdiction thereof”, as written in the 14^th Amendment to the Constitution.  That language refers to complete jurisdiction.  Some sources have “muddied the waters”, claiming only three groups of people are exceptions to automatic citizenship by birthright; children of diplomats here on diplomatic business and have diplomatic immunity to U.S. law; children of an invading army occupying U.S. territory, who obviously are not subject to U.S. law; and members of Native American tribes, subject to their own jurisdiction who do not pay U.S. taxes (since eliminated),  However, the intent of the 14^th Amendment was to exclude those children born of foreign nationals who have never been naturalized and remain citizen subjects of their home countries, owing their allegiance to their home sovereignty.  The argument that two parents from Ireland, or Germany, or Venezuela, or China, or any other country to which they owe their allegiance, happened to give birth to a child while within the territory of the United States, automatically confers citizenship upon that child, is ludicrous.  At some point between 1868 and 2025, that distinction has been ignored.     

The Fifth Circuit ruling that determined those illegal immigrant Venezuelans did not have jurisdiction clearly references complete jurisdiction, not legal jurisdiction.  They are obviously subject to legal jurisdiction while present within U.S. territory. 

In a seemingly contradictory ruling, issued Monday, 19 May 2025, the Supreme Court by an 8-1 majority (Justice Ketanji Brown Jackson, a Biden appointee, was the only voice of dissent), revoked the “protected status” on nearly 350,000 Venezuelans granted in the first weeks of the Biden administration.  The media spins it as paving the way for Trump to process deportations, phony appeasement.  However, they have other ways to fight the ruling, such as claiming asylum and filing appeals.    This just looks like SCOTUS threw a bone to Trump, as some type of “damage control”, but the reality is that before ANY of them actually get deported, more litigation is to come.  That horde is getting plenty “due process”.

One thing is clear as a bell.  Not a single Democrat, their Propaganda Media Complex, or any activist federal judges, who are fighting for the rights of violent criminal illegal aliens, give a damn about the safety and security of actual American citizens.

“The accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

  ­­­ James Madison

SCOTUS is Inconsistent on Immigration

Without diving into every Supreme Court decision regarding immigration laws, which would take an entire semester, I’ll just highlight a few pertinent facts about existing law.

In 1996, as part of the Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA), Congress established streamlined deportation procedures that allow the government to deport (or “remove”) certain non-citizens from the United States without a hearing before an immigration judge.

Despite the government’s broad power over immigration, the Supreme Court has recognized that aliens who have physically entered the United States generally come under the protective scope of the Due Process clause, which applies “to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”

HOWEVER, in Department of Homeland Security v. Thuraissigiam, the Supreme Court in 2020 held that an alien detained shortly after entering the United States could not constitutionally challenge a federal statute limiting judicial review of his “expedited removal” proceedings (a streamlined removal process applicable to aliens apprehended at or near the border).  Although the alien had physically entered the United States, the Court determined that he could be “treated for due process purposes as if stopped at the border” because he was encountered only twenty-five yards inside the United States and essentially remained “on the threshold” of entry.  According to the Court, the “century-old” rule that aliens seeking entry into the United States lack due process rights “would be meaningless if it became inoperative as soon as an arriving alien set foot on U.S. soil.”  The Court observed, moreover, that only aliens “who have established connections in this country” have due process protections in their removal proceedings.

The Supreme Court’s jurisprudence indicates that, although aliens present within the United States generally have due process protections, the extent of those constitutional protections may depend on certain factors, including whether the alien has been lawfully admitted or developed ties to the United States, and whether the alien has engaged in specified criminal activity.  Therefore, even with regard to aliens present within the United States, the Court has sometimes deferred to Congress’s policy judgments that limit the ability of some classes of aliens to contest their detention or removal.

Expedited Removal

IIRAIRA established “expedited removal”, in which immigration officials gained the authority to summarily remove certain aliens.  This is different from the expedited removal proceedings for aliens convicted of aggravated felonies.  Aliens subject to expedited removal include aliens “who are inadmissible because they lack valid entry documents or have sought admission through fraud (may also include aliens inadmissible on same grounds if they are present in the United States without being admitted or paroled and have been in the country less than two years)”.

Expedited removals can be considered removals without hearings: these removals do not require judicial review by immigration judges within the Executive Office of Immigration Review unless the individual plans to apply for asylum or indicates fear of persecution.  Therefore, aliens subject to expedited removal do not have the right to administrative review or the right to administrative appeal and judicial review.  Because expedited removals do not require judicial or administrative review, aliens who are subject to expedited removals are not afforded the right to an attorney during their interviews with immigration officials.

Although the Supreme Court has weighed in with differing opinions on the issue of immigration, it seems as though the Trump administration has more than one way to “skin the cat”, by invoking the “Expedited Removal” status to millions of illegal immigrants who could be classified as those engaged in “specified criminal activities”.  For those so classified, deportations could resume without hearings or judicial review.  Let the games begin.

Comments welcomed.