Supreme Court Enjoins Alien Enemies Act Removals of Detainees in Northern District of Texas and Vacates Fifth Circuit’s Dismissal of Their Appeal

The decision

On May 16, 2025, the Supreme Court of the United States, in a per curiam opinion, granted an application by two detainees held in the Northern District of Texas, and a putative class of similarly situated detainees, for an injunction against removal under the Alien Enemies Act (AEA) pending further proceedings. The Court held that the Fifth Circuit erred in dismissing the detainees’ appeal for lack of jurisdiction; it construed the application as a petition for a writ of certiorari, granted the petition, vacated the Fifth Circuit’s judgment, and remanded.

The Court also concluded that the notice given to AEA detainees in the Northern District of Texas on April 18, 2025, did not satisfy due process, stating: “To be clear, we decide today only that the detainees are entitled to more notice than was given on April 18, and we grant temporary injunctive relief to preserve our jurisdiction while the question of what notice is due is adjudicated.” The opinion states that the Court did not address the underlying merits of the parties’ claims regarding the legality of removals under the AEA.

Background

According to the opinion, the President invoked the AEA, 50 U.S.C. §21, to remove Venezuelan nationals who are members of Tren de Aragua (TdA), a designated foreign terrorist organization, citing Presidential Proclamation No. 10903. The applicants are two detainees, identified in the opinion as A. A. R. P. and W. M. M. and described as identified members of TdA, and a putative class of similarly situated detainees in the Northern District of Texas.

On April 17, 2025, the District Court denied the detainees’ motion for a temporary restraining order (TRO) against summary removal under the AEA. The detainees allege that hours later putative class members were served notices of AEA removal and told they would be removed “tonight or tomorrow.” Early on April 18 the detainees moved for an emergency TRO, later moved for a ruling or a status conference by 1:30 p.m., and at 3:02 p.m. appealed “the constructive denia[l]” of the motion to the Fifth Circuit while also applying to the Supreme Court for a temporary injunction.

The opinion states that the Government addressed the allegations on April 18 only at an evening hearing in a separate case, J. G. G. v. Trump, in the District Court for the District of Columbia, where it guaranteed that no putative class members would be removed that day but represented that removal as soon as the next day “would be consistent with” its due process obligations and that it “reserve[d] the right” to take such action. Shortly before midnight central time, the Court ordered the Government not to remove any member of the putative class, in order to preserve its jurisdiction. The Fifth Circuit then dismissed the appeal for lack of jurisdiction and denied an injunction pending appeal as premature, on the ground that the detainees “gave the [district] court only 42 minutes to act.”

The court’s reasoning

Jurisdiction of the Fifth Circuit

Citing Carson v. American Brands, Inc., the Court stated that appellate courts have jurisdiction to review interlocutory orders that have “the practical effect of refusing an injunction.” It held: “Here the District Court’s inaction—not for 42 minutes but for 14 hours and 28 minutes—had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm.”

Notice and due process

The Court restated that the Fifth Amendment entitles aliens to due process in removal proceedings, citing Trump v. J. G. G., and cited Mullane v. Central Hanover Bank & Trust Co. for the principle that notice must be reasonably calculated to apprise interested parties and afford a reasonable time to appear. It stated that in J. G. G., with all nine Justices agreeing, the Court had explained that “AEA detainees must receive notice . . . that they are subject to removal under the Act . . . within a reasonable time and in such a manner as will allow them to actually seek habeas relief” before removal, and that a detainee “must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.”

The opinion notes that the Government did not contest the applicants’ description of the notice given or the assertion that removals were imminent. The Court concluded: “Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.” It said it was “not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case,” and remanded that question to the Fifth Circuit. It recognized the Government’s national security interests and the necessity that such interests be pursued consistently with the Constitution, and stated that “lower courts should address AEA cases expeditiously.”

The record and the Court’s own authority

Responding to the dissent, the Court stated that preliminary relief is “customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits,” quoting Lackey v. Stinnie, and said the record before the District Court, although limited, indicated that removals were likely imminent. It stated that the relevant jurisdictional question was whether, when the Court was called upon to intervene, the District Court’s inaction had the effect of refusing an injunction, noting the detainees’ representation that “[m]any individuals [had] already been loaded on to buses, presumably headed to the airport.” The Court said it had power under 28 U.S.C. §1651(a) to issue injunctive relief to prevent irreparable harm and preserve its jurisdiction, and that its certiorari jurisdiction now also supports review.

Relief to the putative class

The Court stated that the named applicants and the putative class members are entitled to constitutionally adequate notice before removal, and that although class members may take different steps in response, “the notice to which they are entitled is the same.” Citing a class-action treatise for the proposition that courts may issue temporary relief to a putative class, it said it need not decide whether a class should be certified as to the due process claims. In a footnote, it noted that the District Court recently denied class certification as to the underlying habeas claims, that the order by its own terms is “automatically vacated” by a grant of certiorari, and that the order primarily addressed classwide challenges to the validity of AEA removal rather than notice. Acknowledging the Government’s agreement not to remove the named petitioners under the AEA while their habeas proceedings are pending, the Court wrote: “But we reject the proposition that a class-action defendant may defeat class treatment, if it is otherwise proper, by promising as a matter of grace to treat named plaintiffs differently,” citing FBI v. Fikre.

Separate opinions

Justice Kavanaugh concurred, writing: “The injunction simply ensures that the Judiciary can decide whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act before they are in fact removed.” He identified the underlying questions as whether the AEA authorizes removal of these detainees and, if so, what notice is due, and noted conflicting rulings from federal district courts. He wrote: “At this juncture, I would prefer not to remand to the lower courts and further put off this Court’s final resolution of the critical legal issues,” and would instead “grant certiorari, order prompt briefing, hold oral argument soon thereafter, and then resolve the legal issues.”

Justice Alito, joined by Justice Thomas, dissented, writing: “First and most important, we lack jurisdiction and therefore have no authority to issue any relief.” In his account, the District Court had told the parties that an opposing party would have 24 hours to respond to an emergency motion, was working diligently on complicated issues, and was given 42 minutes—or 133 minutes counting to the notice of appeal—to act; he also argued that the record before that court contained no concrete evidence of imminent removal and that the majority relied on material outside it. He wrote: “First, it is doubtful that class relief may be obtained in a habeas proceeding. We have never so held, and it is highly questionable whether it is permitted,” citing Federal Rule of Civil Procedure 81(a)(4)(B) and Harris v. Nelson, and questioned typicality where the named applicants had pending habeas proceedings and a promise of non-removal. He also objected to granting certiorari before any court had decided a merits question, quoting “we are a court of review, not first view.”

Status

The case is remanded to the Fifth Circuit, which the Court directed to address the normal preliminary-injunction factors, including likelihood of success, as to the named plaintiffs’ habeas claims that the AEA does not authorize their removal under the President’s March 14, 2025, Proclamation, and the question of what notice is due as to the putative class’s due process claims. The Government is enjoined from removing the named plaintiffs or putative class members under the AEA pending the Fifth Circuit’s order and disposition of any timely petition for certiorari; the order terminates automatically if certiorari is denied and upon the sending down of the Court’s judgment if it is granted. The opinion states: “The Government may remove the named plaintiffs or putative class members under other lawful authorities.” The decision was widely reported on the day it issued.