In an unsigned opinion this week, a divided Supreme Court vacated a restraining order from D.C. Circuit Chief Judge James Boasberg that had temporarily prohibited the Trump administration from removing any more immigrants based on a proclamation invoking the Alien Enemies Act. Trump’s victory was not unequivocal, however: The majority did insist that “the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal.” But there remain serious questions regarding whether detainees will be offered the substance of due process or merely the form.
The answers to those questions will depend largely on future decisions of the court. And those decisions in turn may depend on whether Justice Amy Coney Barrett, who is emerging as the most Trump-skeptical of the court’s six-member conservative bloc, can convince another one of her colleagues to put more restraints on the Trump administration.
This does not mean that Barrett will evolve into a fairly reliable liberal vote like some past Republican nominees.
The court held that while the detainees had the right to a hearing, this hearing must come through the filing of an individual habeas corpus petition “in the district of confinement.” This means that the government can transfer detainees to a detention center in, say, Louisiana or Texas, and ensure that these petitions would come before the extremely conservative 5th Circuit Court of Appeals. This is a disturbingly high-stakes outcome for a boilerplate, short and unsigned opinion to reach (and the majority also completely failed to address that Trump has already sent dozens of detainees to a brutal prison in El Salvador without any due process). Not only the court’s three Democratic nominees but Barrett herself dissented. This predictably led to immediate criticism of Barrett by prominent conservatives like Elon Musk and Sen. Mike Lee of Utah.
Some conservative criticism of Barrett is surely motivated by the fact that this is not the first case in which she’s at least partially sided with the court’s more liberal wing and against the man who nominated her. In March, she joined with Chief Justice John Roberts and the court’s Democratic nominees to reject the Trump administration’s request to vacate an order restoring $2 billion in USAID payments that were canceled by the Department of Government Efficiency, even though the payments were for work already completed. Barrett did not join the most extreme parts of the court’s highly controversial opinion granting presidents broad immunity against prosecution. And she joined the court’s liberals in dissenting from its holding that only Congress could enforce Section 3 of the 14th Amendment (forbidding people who engaged in insurrection or provided aid or comfort to insurrectionists from running for office).
To be clear, this does not mean that Barrett will evolve into a fairly reliable liberal vote like some past Republican nominees, such as Harry Blackmun and David Souter. On constitutional issues that have traditionally divided liberals and conservatives, such as abortion rights and the power of the regulatory state, she can be counted on to vote with her fellow conservatives. Some of her disagreements with the other Republican justices in Trump-related cases have been narrow, and her concurrence in the Section 3 case admonished the tone of the joint opinion filed by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
But this is going to be a conservative-dominated court for the foreseeable future. If it is going to restrain the Trump administration’s worst excesses, at least two Republican justices will have to conclude that conservative jurisprudence means something different than enabling Trump even in his most constitutionally dubious actions. And Barrett is the justice most likely to convince Roberts or another Republican-nominated justice to push back.
An interesting test case will be the upcoming legal battle over Trump’s tariff policy. Setting tariffs is not an inherent constitutional power of the presidency — the power to set tariffs was delegated to the president by Congress through the International Emergency Economic Powers Act. But the act allows the president to impose tariffs only in cases of an “unusual and extraordinary threat” to “national security, foreign policy, or the economy of the United States.” It is far from obvious that tariffs applied to a wide range of countries for the purpose of restricting the international economic order — and subject to major sudden revision — are authorized by the statute’s language.
Is the due process being at least theoretically offered by the court real, or will it just be a fig leaf?
Moreover, in the 2023 case Biden v. Nebraska, the Court struck down the Biden administration’s student loan reduction program despite explicit statutory authority to “waive or modify” student loans under the theory that Congress would not leave “major questions” for the executive branch to decide when delegating power.
Critics, including myself, charge that the “major questions” doctrine is just an ad hoc means for the court to ignore statutory language and override a president if it doesn’t like the policy results. But if we take the court at its word, it would be hard to think of a question more “major” than tariffs intended to reorder the international trading system and capable of vaporizing trillions of dollars of market value in 48 hours. In Barrett’s concurring opinion in Biden v. Nebraska, she offered a thoughtful and comprehensive (if still unpersuasive) defense of the doctrine. The challenge to Trump’s tariff policy will be a good test of whether the “major questions” doctrine represents a real restraint on executive power, or whether its detractors were right.
And the court faces a similar test with respect to Trump’s detainment and removal of immigrants. Is the due process being at least theoretically offered by the court real, or will it just be a fig leaf putting a legal veneer on decisions to send immigrants to foreign slave prisons without a fair hearing? The answer may depend in part on the ability of Barrett to convince at least one other Republican-nominated justice that conservative jurisprudence does not require consistent acquiescence to President Trump.
