Access to Justice, Deferred and Denied

The Supreme Court limits judicial remedies and increases deference to executive power in immigration enforcement.

The U.S. Supreme Court ended its 2024–2025 term with three decisions in cases challenging executive actions furthering the Trump Administration’s campaign of mass expulsion and forcible disappearance of non-citizens. In each—A.A.R.P. v. Trump, Trump v. J.G.G., Department of Homeland Security v. D.V.D.— a majority of the Court avoided direct engagement with the scope of due process or the constitutional and statutory rights due to noncitizens. A review of these three decisions—together with the Court’s ruling in Trump v. CASA, a challenge to the Administration’s executive order seeking to terminate birthright citizenship—demonstrates how the Court has worked to tip the balance of powers in favor of the executive branch. In doing so, it has undermined efforts to preserve the minimum guaranteed fundamental constitutional and human rights of persons subject to removal from the United States.

A.A.R.P. marked a momentary pause in the Trump Administration’s mass deportation efforts. The Administration sought to expand its deportation initiative by invoking the Alien Enemies Act of 1798—a law that previously had only been invoked during the War of 1812, World War I, and World War II—which allows the deportation of the citizens of an enemy nation during wartime. Building on the second Bush Administration’s use of the post-9/11 “War on Terror” narrative to justify national-origin-based registration requirements, mass detention, and covert surveillance of American citizens, the second Trump Administration has employed a wartime narrative to justify the swift disappearances and deportation of American residents. The Trump Administration repeatedly claims—without factual support—that the persons targeted by these efforts are members of Tren de Aragua, a Venezuelan gang that the Trump Administration asserts has conducted an “invasion” or “predatory incursion” on U.S. soil.

Recognizing that those facing removal from the United States under the Alien Enemies Act faced “an imminent threat of severe, irreparable harm,” in A.A.R.P. the Supreme Court issued an order holding that, regardless of purported national security concerns raised by the government’s allegations of Tren de Aragua membership, the executive branch cannot violate constitutional protections. The individuals subject to immediate removal under the Alien Enemies Act had sought an emergency temporary restraining order (TRO) blocking their imminent removal from the United States after receiving notices that they would be removed “tonight or tomorrow.”

Two hours after their sought for deadline for granting a hearing on the TRO, with no ruling from the district court, the plaintiffs appealed the district court’s “constructive denial” of the TRO before the U.S. Court of Appeals for the Fifth Circuit, which dismissed the appeal for lack of jurisdiction, finding the Plaintiffs had not given the district court sufficient time to respond. The Court reviewed the application for an injunction that would prevent removal until further proceedings could be held before the lower courts.

In its review, the Court took note of evidence that, despite the Trump Administration’s assurances that it would not initiate removals before the following day, made in the parallel case of J.G.G. pending before the U.S. District Court for the District of Columbia, the Administration had in fact taken steps towards removal during that time. The Court then recognized that such removals would have opened questions as to the courts’ jurisdiction over claims from individuals outside the United States. As the Court noted, those subject to imminent removal under the Alien Enemies Act had the right to both notice and an opportunity to be heard. The government’s provision of as few as 24 hours’ notice to individuals before their deportation—without giving sufficient information or time to seek legal counsel or judicial relief—was found to violate basic principles of procedural due process.

The Court, ruling that the Fifth Circuit erred in dismissing the detainees’ appeal on jurisdictional grounds, held that the district court “constructively denied injunctive relief,” justifying appellate review. In so ruling, the Court reinforced the idea that the judicial branch retains the authority to check executive enforcement—especially when core liberty interests are at stake.

A.A.R.P., however, should be read alongside the Court’s two other rulings on the Trump Administration’s deportation efforts—J.G.G. and D.V.D.—as well as one other significant immigration decision from the final week of the Court’s term, CASA. Together, these cases reflect not only the Trump Administration’s persistent denial of the due process rights of individuals and factually unsupported insistence that deportation efforts are aimed at violent criminals, gang members, and terrorists, but also the Supreme Court’s considered refusal to rule on the constitutional rights of those subjected to the Administration’s deportation machine. In each of these cases, the Court’s willingness to hide behind procedural issues—thereby avoiding direct conflict with the substance of executive policies—has further complicated the procedural landscape non-citizens must navigate to protect their rights while doing little to stop the Trump Administration’s push toward mass deportations.

In J.G.G., which preceded A.A.R.P., the plaintiffs—Venezuelan nationals labeled as members of Tren de Aragua, detained in Texas, and threatened with removal to El Salvador—successfully obtained an order from the district court blocking their removal under the Alien Enemies Act. Although the five named plaintiffs remained in custody in Texas, approximately 137 others were put on planes and delivered to the now-infamous CECOT prison in El Salvador—seemingly after the District Court injunction. The district court’s order sparked a power struggle between the judiciary and the executive, which quickly escalated—on application by the Trump Administration—to the Supreme Court. The Court’s conservative majority—using the shadow docket, through which the Court issues orders on pressing matters without full briefing and, often, without discussion or opinion—stayed the order prohibiting the plaintiffs’ removal, holding that these cases should have been brought as habeas petitions, through which they could challenge the constitutional validity of their detention in the district within which the individuals are detained, rather than as Administrative Procedure Act claims before the D.C. District Court.

J.G.G. remains unresolved. While the over 200 individuals sent to the CECOT jail in El Salvador have since been released and returned to Venezuela as part of a prisoner swap orchestrated by the United States, other plaintiffs remain in detention in Texas and elsewhere. In addition, no plaintiff has benefited from the relief nominally afforded them by A.A.R.P.—notice and the opportunity to have their fear-based claims of return to a third country adjudicated. Habeas petitions have since been filed in the six states where the plaintiffs are detained, in addition to ongoing litigation.

The procedural posture and the judicial precedents governing habeas challenges in removal cases such as those before the Court in J.G.G. are complex and time sensitive. That complexity and urgency, combined with the realities of imposed isolation wrought by detention, make it exceptionally difficult for individuals whisked away under the Alien Enemies Act to enforce their rights to notice and to a hearing articulated in A.A.R.P., particularly for those unable to access legal representation from individuals and organizations with the intellectual, time, and resource capacity to navigate the rugged and increasingly constricted legal terrain.

Individuals with final removal orders also challenged attempts by the Trump Administration to remove them to countries other than their country of origin. In D.V.D., the Supreme Court granted the government’s emergency request to stay a district court order enjoining third-country removals of individuals without basic due process protections—including notice and an opportunity to raise fear-based claims, claims for relief from removal under the immigration laws, grounded in U.S. obligations under the UN Refugee Convention and the UN Convention Against Torture, to not remove someone to a country where it is more likely than not that they risk targeted persecution or torture.

The stay, issued by the Court without a written opinion, allowed the government to resume deportations while its appeal was pending. This procedural decision has significant substantive, rights-impairing impacts. Most significantly, the stay leaves open the path of deportations to countries where individuals may face torture or persecution, contrary to U.S. obligations under international law, and codified in the U.S. Immigration and Nationality Act. And as in A.A.R.P., the Supreme Court failed to resolve the underlying legal questions—whether the removals were lawful and whether due process had been satisfied—while signaling a willingness to prioritize executive immigration enforcement over individual protection.

Finally, in CASA, the Supreme Court considered one of the many challenges to the Trump Administration’s attempted revocation of birthright citizenship, which has long been understood to be an entrenched constitutional right. Here, again, the Court sidestepped the underlying constitutional issue—whether the President could unilaterally restrict birthright citizenship—instead narrowly focusing on the scope of the judiciary’s power. It held that, absent more rigorous justification, district courts lack the authority to issue nationwide injunctions against executive actions. This ruling significantly curtails the ability of lower courts to provide immediate, nationwide relief in the face of potentially unlawful executive action, particularly in immigration cases with wide-reaching effects. Its impact on immigrant families, on the children of immigrants born in the United States, and, ultimately, on American communities writ large cannot be underestimated. The negative effects of this holding may be particularly grave as the majority of non-citizens placed into removal proceedings or detained are without counsel, impeding their ability to seek immigration relief and vindicate their legal rights.

Together, these decisions chart a troubling trajectory in administrative law. Although A.A.R.P. offered a procedural victory for immigrant detainees seeking access to courts, D.V.D. and CASA represent a narrowing of judicial remedies and heightened deference to executive authority. The thread connecting these cases is the struggle over access to justice: who gets to assert their rights, when they may do so, and in what forum. The result is a federal judiciary hampered in its ability to preserve fundamental constitutional and international human rights when non-citizens and citizens alike confront an immigration enforcement regime increasingly characterized by mass detention, rapid removals, and limited transparency.