The Supreme Court and Donald Trump Battle Over Immigration: Will the Law Prevail?
I previously reviewed the Supreme Court’s immigration decisions in the 2024 Term. This piece offers some more thoughts on the future of the rule of law in immigration cases.
Only a handful of immigration cases each year make it to the U.S. Supreme Court. Zealously pursuing an immigration enforcement agenda like no other modern President, Donald Trump in his first six months of his second term saw his policies result in four major immigration decisions from the high Court. I am not counting a number of cases on the emergency docket, which are beyond the scope of this post. However, the Court’s lifting of lower court injunctions of allegedly unlawful conduct may well encourage actions in violation of the law.
Dutifully applying precedent, the Court in the immigration decisions has informed the Trump administration that noncitizens, including undocumented migrants, have due process rights before they are removed from the United States. However, whether the Court will be able to ensure that the Trump administration fully complies with its rulings is far from clear.
Wrongful Deportation: Noem v. Abrego Garcia (Apr. 10, 2025)
On March 15, 2025, the United States quickly removed Kilmar Abrego Garcia without a hearing from the United States to his native El Salvador, where he was imprisoned. Before his apprehension, an immigration court had found that Abrego Garcia could not be removed to El Salvador because his life or liberty would be at risk. The U.S. government initially admitted that his removal was an “administrative error” but later insisted that Abrego Garcia should have been removed because he is a member of the MS-13 gang and that his return to the United States would pose a public safety threat. Abrego Garcia denied that he is a gang member. He had lived in the United States with his family, including a developmentally disabled child, for a decade and, before his removal, had never been charged with a crime (although apparently had a few run ins with the law).
The Supreme Court found that the lower court order “properly requires the Government to `facilitate’ Abrego Garcia’s release from custody in El Salvador . . . . ” However, the Court also concluded that the district court’s order that the administration “effectuate” his return may have exceeded the court’s authority. The Court directed the district court to “clarify” its order “with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” “For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”
Justice Sotomayor, joined by Justices Kagan and Jackson, issued a forceful statement on the ruling: “In the proceedings on remand, the District Court should continue to ensure that the Government lives up to its obligations to follow the law.”
Despite the Court’s ruling, Abrego Garcia remained in El Salvador. The administration alleged that the Salvadoran government simply would not return him to the United States, which strains credulity given that the U.S. government was paying the Salvadoran government to imprison him and other migrants. With much public attention to his case, Abrego Garcia was returned to the United States and charged with transporting undocumented immigrants. The charges resulted in the resignation of a federal prosecutor. Abrego claimed that he was beaten and tortured in El Salvador.
Due Process for Migrants: Trump v. J.G.G (April 7, 2025) and A.A.R.P v. Trump (May 16, 2025)
In Trump v. J.G.G., the Supreme Court in a per curiam (unsigned) order addressed challenges to the detention and removal of Venezuelan nationals alleged by the Trump administration to be members of Tren de Aragua (TdA), a gang that the State Department has designated as a foreign terrorist organization. The President invoked the Alien Enemies Act of 1798 to detain and summarily remove (i.e., remove without a hearing) Venezuelan nationals who he alleged were gang members.
A class sought injunctive and declaratory relief against their removals. Lower courts enjoined the Trump administration from removing the class of detainees. Limiting the federal court’s power to issue broad injunctive relief, the Supreme Court held that challenges to removals must be brought in individual habeas corpus proceedings in the court with jurisdiction over where the noncitizen is detained. The Court held that, because the detainees were confined in Texas, venue was improper in the District of Columbia where the cases were brought. Acknowledging that an individual subject to detention and removal is entitled to a hearing in court, the Court emphasized that
“[i]t is well established that the Fifth Amendment entitles [noncitizens] to due process of law in the context of removal proceedings. [citation omitted]. So, the detainees are entitled to notice and opportunity to be heard “appropriate to the nature of the case.” [citation omitted]. . . . [The] detainees must receive notice after the date of this order that they are subject to removal under the Act. 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.”
The Court makes it crystal clear that noncitizens who the U.S. government seeks to remove from the country have Due Process rights. Hearings are designed to avoid wrongful deportations like that of Kilmar Abrego Garcia.
Justice Sotomayor, joined by Justices Kagan and Jackson (and Justice Barrett in part), objected to the Court limiting detainees to habeas corpus relief. “This case arises out of the President’s unprecedented peacetime invocation of a wartime law known as the Alien Enemies Act. . . . Before today, U.S. Presidents have invoked the Alien Enemies Act only three times, each in the context of an ongoing war: the War of 1812, World War I, and World War II.” (bold added) (footnotes omitted). That statement highlights just how unprecedented the Trump administration’s actions are.
A little more than a month later, in A.A.R.P. v. Trump (May 16, 2025) (per curiam), the Court again was required to halt the administration’s hasty efforts to remove without a hearing Venezuelan migrants under the Alien Enemies Act of 1798. Ignoring the Court’s ruling in J.G.G., the administration moved so quickly that it almost removed the migrants before the Court could intervene.
In short, the Supreme Court to this point has rejected the Trump administration’s summary removal of noncitizens under the Alien Enemies Act of 1798. The Court has championed due process for migrants who the U.S. seeks to remove from the United States. However, the administration continues to push for the removal of migrants without due process. The Court may need to be recalibrate the force of its responses to the Trump’s war on immigrant rights.
Birthright Citizenship/Nationwide Injunctions
The Fourteenth Amendment states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The language “subject to the jurisdiction” has always been considered to apply to foreign diplomats who are generally immune from U.S. laws even when present in U.S. territory. One of the Reconstruction Amendments that went into place after the Civil War, the Citizenship Clause rejected the Supreme Court’s decision in Dred Scott v. Sandford (1857), which had denied U.S. citizenship to freed slaves because of their race and contributed to the outbreak of the Civil War. For a capsule summary of the law of birthright citizenship, see Testimony of Professor Amanda Frost on Birthright Citizenship and the Fourteenth Amendment, U.S. House of Representatives Committee on the Judiciary (2025).
In 1898, the Supreme Court held that that the Citizenship Clause “affirms the ancient and fundamental rule of citizenship by birth within the territory.” United States v. Wong Kim Ark (1898). The Court rejected the U.S. government’s argument that that a Chinese man born in the United States was not a U.S. citizen because his parents were citizens of China. Before and after the decision, courts universally recognized citizenship to all persons born on United States soil — whatever the citizenship status of their parents.
President Trump long has criticized birthright citizenship and verbally attacked “anchor babies,” children born to undocumented immigrants who are afforded U.S. citizenship under the 14th Amendment. President Trump on January 20, 2025, issued an executive order entitled “Protecting the Meaning and Value of American Citizenship.” Section 2(b) is no less than a frontal assault on birthright citizenship:
“[T]he United States government shall [not] issue documents recognizing United States citizenship . . . to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”
The Executive Order would bar citizenship to persons born in the United States to undocumented parents as well as ones lawfully in the U.S. on a temporary (student, tourist, business, etc.) visa. In three cases that eventually came before the Supreme Court, lower courts enjoined the President’s denial of birthright citizenship to the children of undocumented immigrants. The Court granted review to consider the power of the federal courts to issue nationwide, or universal, injunctions, which enjoin a president’s actions across the entire nation.
In Trump v. CASA, Inc., no Justice questioned the rule of birthright citizenship. The Court, as Amy Howe for SCOUTSBlog.com summarized,”[b]y a vote of 6-3, the justices . . . the concept of universal or nationwide injunctions . . . . The justices did not, however, weigh in on the question at the center of the three lawsuits before the court: whether the birthright citizenship order itself is constitutional.” (bold added). Justice Barrett wrote for the majority, which included Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh. The opening paragraph of the majority opinion states:
Traditionally, courts issued injunctions prohibiting executive officials from enforcing a challenged law or policy only against the plaintiffs in the lawsuit. The injunctions before us today reflect a more recent development: district courts asserting the power to prohibit enforcement of a law or policy against anyone. These injunctions—known as “universal injunctions”—likely exceed the equitable authority that Congress has granted to federal courts. We therefore grant the Government’s applications to partially stay the injunctions entered below.
The majority writes that “the birthright citizenship issue is not before us.”
In conclusion, the Court states that “[t]he Government’s applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. The lower courts shall move expeditiously to ensure that, with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity.” (bold added).
Justice Sotomayor, joined by Justices Kagan and Jackson, wrote a forceful dissent:
“No right is safe in the new legal regime the Court creates. Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law abiding citizens or prevent people of certain faiths from gathering to worship. The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent.”
Justice Jackson dissents even more forcefully:
“I agree with every word of JUSTICE SOTOMAYOR’s dissent. I write separately to emphasize a key conceptual point: The
Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law.” (bold added).
Trump v. CASA, Inc. restricts the power and authority of the lower federal courts and will have ripple effects on cases far beyond immigration law. See the analysis of the decision by Steve Vladeck, Harold Koh, and Eric Berger. The Supreme Court left open the question of the scope of injunctions in class action lawsuits, where a nationwide class might be certified under Federal Rule of Civil Procedure 23. After the Court’s ruling, class action suits challenging President Trump’s birthright citizenship executive order were filed.
Conclusion
The Trump administration’s actions brought many more immigration cases to the Court than usual in the first six months of President Ttump’s second term. Besides the ones discussed here, the Court on May 30 stayed a lower court injunction and cleared the way for the Trump administration to end Temporary Protected Status in the United States to more than a half million migrants from Cuba, Haiti, Nicaragua and Venezuela.
While the U.S. government will prevail in some cases, the Supreme Court has been clear that it will restrict President Trump’s most extreme immigration actions and ensure compliance with Due Process and the rule of law. However, enforcement of the Courts orders have to this point been easier said than done. It does appear that while the Court is responding with a judicious approach (some might call it the high road) to the President Trump’s scorched earth war on immigration law. The administration remains adamant that that noncitizens have no rights and they can be removed from the country as the Trump administration desires. One wonders how many cases like J.G.G. and A.A.R.P. must be decided until the administration understands that a hearing before removal is required by the Due Process Clause. One can only fear what might happen in future cases if the administration is not compelled to comply with the rule of law.
KJ