In an April 7 per curiam decision, the U.S. Supreme Court said detainees seeking to challenge their detention under the 1798 Alien Enemies Act must submit a petition for habeas corpus in the jurisdiction in which they are being held. That decision essentially overturns Judge Boasberg’s ruling that the proper venue was Washington, D.C, where the agencies are headquartered. Per curiam opinions are generally opinions which the court considers to be simple, obvious, and which do not need lengthy, complicated explanations. They are so simple that no single judge needs to sign the opinion.
All nine justices agreed on that discrete point regarding the need for due process. But, they disagreed on other issues. All nine justices agreed that the detainees are entitled to notice and due process before being deported. That was a clear rebuke to the Department of Justice.
“To the extent the government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court,” Sotomayor said in her opinion.
The court did not address the underlying issue, whether the Federal government can use the nineteenth century Alien Enemies Act to deport the suspected gang members.
Habeas Corpus
Barrett, Kagan and Jackson also joined another portion of Sotomayor’s opinion which questioned the majority opinion which said the detainees needed to file a petition for habeas corpus. That is a “thorny” question, said the dissent. That is, these four justices would argue something more robust than a simple habeas corps petition would be needed. That thorny question will certainly be re-visited in full when the case is appealed on the full merits. A habeas corpus petition is a very brief motion which calls on the court to explain why a person is being held. A habeas corpus petition does not address the correctness of holding someone – it simply asks for the basis.
The Emergency Docket
In a separate dissent, Justice Jackson decried the “fly-by-night” approach to the work of the highest court in the land. She meant that resolving difficult issues this early in the process is problematic. The issues have not yet had time to develop. Justice Jackson is objecting to the majority which even accepted the government’s request for an emergency appeal. See ABA Bar Journal report here. See the court’s per curiam opinion here.