Begone, Alien Enemies! - Immigration America

The Supreme Court‘s decision in Trump v. J.G.G., issued on Monday, April 7 is terrifying:

The Supreme Court held that Trump can deport individuals under the “Alien Enemies Act” of 1798. This includes aliens who are either lawfully or unlawfully in the United States.

The Supreme Court turned a blind eye to the effects of the enormous power it was giving the executive branch – especially an executive which had already demonstrated a callous disregard for due process, the rule of law and the integrity of the federal judiciary.

This decision was not some innocent misunderstanding or simply a temporary abridgement of civil liberties in this one isolated case. The effects of this decision, – as with the Trump immunity decision last year – are far reaching and frightening in scope. This decision was made willfully by five justices of the Supreme Court, who decided, after full and careful consideration, to give the executive branch the right to deport any non-citizen it considers unbearable.

Given that the Alien Enemies Act can also be used as basis to imprison US citizens, the decision becomes even more chilling and fearful in its application.

A citizen, who this executive considers to be a thorn in its side, may be detained and potentially imprisoned for a long period of time, while the government claims he or she is an “alien enemy” under the act.

Seems far-fetched?

I don’t think so.

The Trump administration has already sought the removal of legal permanent residents. That was even without using the Alien Enemies Act. Now, with the Supreme Court decision in his back pocket, Trump can pretty much detain anyone he chooses.

In a recent executive order, Trump singled out immigration, attorneys, and advocates for increased scrutiny. He has even taken aim at “big law” firms. Anyone, in fact, who he sees as a threat to his authority.

Coupled with the Supreme Courts’ July 2024 immunity decision, this latest decision favoring Trump – by the same, 5-4 vote, with the exact same justices on each side – is nothing but a powerful damper on the rule of law, free speech, activism, and any in all form of dissent against the Trump administration, its enablers and allies.

Surely, the Justices could see this coming. Yet, in a 5-4 majority, they acquiesced to Trump‘s ridiculous demands.

The only remedy now available to individuals detained under the Alien Enemies Act is a writ of habeas corpus. Imagine the logistical nightmare for detainees of very limited means to find lawyers and rush habeas cases to court in the jurisdiction where they are detained. And if the administration, with the enormous resources that its disposal chooses to do so, it can put those people on a plane and send them out of the United States away from the jurisdiction of the US court.

Even though habeas cases may be brought by individuals who have already been removed from the United States – for example, the detainees in El Salvador – such cases are going to be logistically hard to bring, enormously expensive, and dubious in the likelihood that the administration will actually respect any court order requiring the return of any non-US citizen.

In a second opinion issued on Monday, April 7, the Supreme Court seemed to suggest just that: it overruled the District Court order requiring the return of an alien granted withholding of removal to El Salvador, who had been – erroneously – sent to El Salvador. If the Supreme Court is not willing to follow the rule of law which it purports to uphold and is willing to overrule the decisions of judges from across the country, this portends poorly for the fate of democracy in this country.

What’s next? The end of birthright citizenship?

Welcome to the reign of King Trump, wannabe Emperor of the World. And thank you, Supreme Court, for fitting him in his new cloak of impunity. Goodbye, American Experiment in Democracy.

Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.