On April 7, the U.S. Supreme Court unanimously held that if the Trump administration seeks to deport someone under President Donald Trump’s invocation of the Alien Enemies Act (AEA), then that deportee must first be afforded due process, including “notice and an opportunity to challenge their removal.” Furthermore, according to the Court’s order, “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.”
What the Supreme Court’s order did not do, however, was to spell out exactly what counted as either a “reasonable time” or a proper “manner” when affording such notice. Presumably, the Supreme Court left that for the lower courts to hash out, fully expecting that whatever the lower courts decided would be back before the High Court for additional review soon enough.
Earlier this week, Judge Charlotte Sweeney of the U.S. District Court for the District of Colorado kicked that process into high gear. In a case known as D.B.U. v. Trump, Sweeney held that the Trump administration “shall provide a twenty-one (21) day notice to individuals detained pursuant to the [Alien Enemies] Act and [presidential] Proclamation.” Sweeney’s order further required that such notice “must state the government intends to remove individuals pursuant to the act,” and must “also provide notice of a right to seek judicial review, and inform individuals they may consult an attorney regarding their detainment and the government’s intent to remove them.” And, the judge ordered, “such notice must be written in a language the individual understands.”
The Supreme Court’s April 7 order is perhaps best understood as a broad declaration of basic principles of due process and judicial review, specifically issued by the Court in response to the administration’s flagrant disregard for such principles. In effect, the Supreme Court put the Trump administration on notice.
Sweeney’s order put some meat on the bones. It told the government exactly what it must do, and when it must do it by, in order to satisfy due process in an AEA case. If the government fails to faithfully follow the clear terms of D.B.U. v. Trump, the government’s bad faith will be plain for all to see.
Sweeney’s order also provides a sort of yardstick for other judges to measure their own actions in similar AEA cases. If 21 days’ notice is good enough for the District of Colorado, a federal judge in a different district might ask herself, is it good enough here?
The Supreme Court will be watching too. Remember, the Court’s April 7 order not only left the details of due process unspecified; the order also said nothing about the underlying statutory conflict. In other words, the Court said nothing about whether Trump’s use of the Alien Enemies Act was lawful or not in the first place. In fact, there is excellent reason to think that Trump has acted unlawfully.
But even if that’s not what a majority of the Supreme Court ultimately thinks, the justices will still have to confront the question sooner or later in an appropriate case. Perhaps this will be the case that brings about that necessary confrontation.
