Ignore the Trump Administration Spin: The Supreme Court Decision Yesterday Was Still a Win for Due Process

 Yesterday in a 5-4 decision, the U.S. Supreme Court overturned the order of the district court in D.C. stopping deportation and transfer of Venezuelans to El Salvador pursuant to the Alien Enemies Act.  The Trump Administration immediately declared this a huge win.   As the Washington Post reports, "Homeland Security Secretary Kristi L. Noem celebrated the Supreme Court’s ruling in a social media post Monday evening. “President Trump was proven RIGHT once again! SCOTUS confirms our Commander-in-Chief Donald J. Trump has the power to stop the invasion of our country by terrorists using war time powers. LEAVE NOW or we will arrest you, lock you up and deport you,” she wrote."

To the contrary, while the Supreme Court decision was disappointing in many respects, it was also a unanimous decision that migrants are entitled to due process before being deported and transferred. 

As a starting point, it is important to note that the Court did not reach the merits of the case.  It did not decide whether the Alien Enemies Act authorized the transfer of migrants to El Salvador.  It did not decide whether the transfer of the migrants to a notorious El Salvadoran prison was lawful.  Instead, the Court merely ruled that the case was brought in the wrong court.  The case was brought in the federal courts in D.C. as a case under the Administrative Procedures Act, but should have been brought as a habeas corpus action in Texas where the migrants were detained. 

What is interesting about the decision is that the Majority expressly rejected the argument that migrants could be removed without notice and an opportunity to contest removal:

“It is well established that the Fifth Amendment entitles aliens to due process of law” in the context of removal proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). So, the detainees are entitled to notice and opportunity to be heard “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). More specifically, in this context, AEA 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.

This point is emphasized by Justice Sotomayor in her dissent:

 Critically, even the majority today agrees, and the Federal Government now admits, that individuals subject to removal under the Alien Enemies Act are entitled to adequate notice and judicial review before they can be removed. That should have been the end of the matter.

.  .  .

So too do we all agree with the per curiam’s command that the Fifth Amendment requires the Government to afford plaintiffs “notice after the date of this order that they are subject to removal under the Act, . . . within reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Ante, at 3. That means, of course, that the Government cannot usher any detainees, including plaintiffs, onto planes in a shroud of secrecy, as it did on March 15, 2025. Nor can the Government “immediately resume” removing individuals without notice upon vacatur of the TRO, as it promised the D. C. Circuit it would do. See 2025 WL 914682, *13 (Millett, J., concurring) (referencing oral argument before that court). 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. 

Not surprisingly, the ACLU called this an important victory.  They are clearly right.

So what does this mean?  For future attempts to transfer migrants under the Alien Enemies Act, the Trump Administration must afford "a meaningful opportunity to file and pursue habeas relief."  Given the practice of the Administration in sending detainees to Texas (where the district court and Court of Appeals are dominated by conservatives), most of these cases will need to be filed in the Texas federal district courts--which will be much less favorable to migrants than D.C.  Nonetheless, the argument that the Alien Enemies Act does not authorize the removals (as well as the argument than transfer to the El Salvadoran prison is itself a constitutional violation remain) will be litigated and most likely decided by the Supreme Court.

 What of the migrants sent to El Salvador already?  I think they have a good argument that after transfer to El Salvador, the D.C. district court is the right venue for their habeas action.  The district court this morning issued an order stating that "[T]he Supreme Court...determined that the appropriate venue for such proceedings is the Southern District of Texas or wherever Plaintiffs are currently held."   There is case law supporting that D.C. is the appropriate venue for habeas for individuals held outside the United States.  Indeed, I have been involved in two habeas cases brought by detainees at Guantanamo, and these were brought in D.C. Last time I checked, El Salvador is outside the U.S. 

The most challenging issue is what relief the migrants can obtain.  That is the issue before the Supreme Court as I write.

 

 

 

Are the Trump Tariffs Even Legal?

 With all the attention to the harm that the Tariffs will cause the US and Global economies, there has been little discussion on an important question: is Trump even authorized to impose such massive tariffs?  There is actually a strong legal case that the tariffs are not authorized, and there is already one legal challenge to the initial round of tariffs on Canada, Mexico and the U.S.

There is a complicated set of laws governing the President's authority to issue tariffs.  This not an area of my expertise so I won't pretend to summarize these laws.  (But we do have great trade lawyers at Arnold & Porter if you are looking for great legal counsel!).  Suffice it to say that these trade laws allow the President to impose tariffs on certain industries using a list of particular  criteria and only after a process is followed.

Trump, however, did not exercise any of these trade authorities in imposing his tariffs--either in the first round or in this week's  tariffs.  Instead he relied on the International Emergency Economic Powers Act (which all the cool kids call IEEPA) , which I do address in my practice.  IEEPA is the basis of much of our sanctions on other countries.  It allows the President to address unusual and extraordinary threats by declaring a national emergency, and authorizes the President to prohibit or regulate, among other things,  "any transactions in foreign exchange" and "importation and exportation" of any property of a foreign national.  

As I said, IEEPA is the law authorizing sanctions on countries and foreign individuals.  Until this year, it has never been used to impose tariffs.  To be fair, President Nixon did impose a 10% supplemental duty on all imports in order to address a currency crisis in 1971 under IEEPA's predecessor statue (Trading With the Enemy Act), and the Custom's Court upheld that duty.  The case upholding these tariffs, however, adopted some limits on this authority.  In particular, the court said that the Trading With the Enemy Act was “limited to articles which had been the subject of prior tariff concessions” and did not “tear down or supplant the entire tariff scheme of Congress.” 

The key legal issue, therefore, will be whether the admittedly broad language of IEEPA and the use of the Trading With the Enemy Act to impose a a tariff surcharge in 1971 gives the Trump Administration sufficient authority to impose massive tariffs on the entire world.  I think there is serious doubt that the courts would answer yes.

Critical to this issue is the U.S. Supreme Court's recent decision in West Virginia v. EPA, where the court said that where there is something extraordinary about the “history and breadth of the authority” an agency asserts or the “economic and political significance” of that assertion, courts should “hesitate before concluding that Congress meant to confer such authority."  In that case, the Court applied this principle to reject the EPA's claim for authority over an issue of "vast economic and political significance" where Congress has not clearly empowered the agency with power over the issue.  During the Biden Administration, the Court used this doctrine to strike down several claims of authority--most notably in striking down the Biden Administration's plan to forgive student loans.

It is not difficult to make the case that the extraordinary Trump tariffs--imposing a massive increase in tariffs globally-- is of vast economic and political significance and there is little evidence that Congress clearly gave such sweeping authority in IEPPA.  While Nixon imposed a tariff surcharge under the Trading With the Enemy Act, this surcharge acted within the  normal tariff framework at the time.  The Trump tariffs tear down the existing structure and impose the highest tariffs in U.S. history without any hint of Congressional action.

I think that a fair reading of IEPPA is that modest tariffs directed to particular countries is an authorized sanction in the President's tool box, but there is nothing in the legislative history of the Act that Congress intended the President to use IEEPA to ignore the Trade Law framework, and impose another framework altogether.  Simply put, there is no evidence that Congress intended to completely cede its constitutional power over tariffs to the President.

It will be interesting to watch the courts address the first legal challenge to the tariffs--and to see if other businesses and business groups have the courage to challenge the tariffs as well.  I also wonder with the Democratic Attorney Generals might have standing (since their States are major consumers of goods subject to the new tariffs) to challenge the tariffs as well.  There are many other potential legal arguments available to these potential plaintiffs, but I think the "major questions" line of cases is the most fruitful avenue of attack.

A Few Observations About the Trump Tariffs

 

Source: USITC and Yale Budget Lab

This charts says it all.  The Trump tariffs announced yesterday have resulted in an average US tariff rate higher than the infamous Hoover Administration era  Smoot-Hawley Tariffs that caused our economy to go into a tailspin. And the folks who know the US economy better than anyone--the folks that buy and sell stocks--have given their view of the tariffs:  as I write this, the S&P index is down more than 4%.

Here are some observations about the tariffs.

First, they stupidly include items that the US does not produce, and because of geography will likely never produce, including common grocery items as coffee, banana, winter fruits and vegetables, and chocolate.  To what end?  There won't be any insourcing of these items, and no new US jobs will result from the tariffs.  All that will happen is that the cost of groceries for Americans will go up for Americans.  The Yale Budget Lab model estimates that the tariffs will increase fresh produce by 4% and overall food prices will rise 2.8%.  

Second, for a large number of manufacturing items such as automobiles and smart phones, even if companies want to onshore production in the U.S., it will take years to make the adjustment.  Companies have to live with existing contractual arrangements and raise the capital and construct new facilities in the US.  This takes time, and given that tariff policy has become so political and unpredictable, it is not at all certain that companies will find new investments in the US to be a good bet.  In the meantime, US consumers have to live with higher prices.  The Yale Budget Lab Model predicts that the tariffs will increase the average price of an average 2024 new car by $4000.

Third, the new tariffs are not even remotely "reciprocal."   Our trading partners don't have tariffs even remotely as high as the Trump tariffs.  Instead, the tariffs were set by a formula that divided the trade deficit by the total total exports to America, despite the fact that country's trade deficit may have nothing to do with tariffs or other policies.  

Fourth, the impact on Americans from these tariffs will be significant.  The Yale Budget Lab Model estimates that the average household loss will be $2,100, with the highest impact (as a percentage of household income at the lower and middle income distribution. 

Finally, this strikes me as a rather significant action by the President.  It is effectively the most significant tax increase in American history,  In recent Supreme Court decisions, the Court  has said that the executive branch is limited in its ability to act on issues of great political or economic significance absent clear congressional authorization.  This principle was used to strike down the Biden Administration's student loan forgiveness initiative.  It seems to me that the biggest tax increase in US history qualifies as a matter of great economic significance, and reliance on vague emergency powers should not be sufficient.  I look forward to the conservatives on the Supreme Court acting in a principled way to struck down these tariffs.

Trump Is Apparently Pro-Parkinson's and Pro-Infectious Disease

 The National Institutes of Health is the largest funder of biomedical research in the world.  It has a remarkable list of accomplishments that has saved millions of lives including development of vaccines for hepatitis, HPV and polio, treatments for HIV/AIDS, cancer and Alzheimer's, and the  development of the MRI machine.  It also plays an important part of our economy--its basic research very commonly results in hugely profitable drugs and medical devices.

Given this history of success--that affects every American--NIH has benefitted from bipartisan support.  Its budgets have done well in both Republican and Democratic Administrations.  Until now.

Through a series of actions--the most dramatic occurring yesterday--the Trump Administration has gutted NIH.

• As I reported in a previous post, the Trump Administration has announced a new rule about reimbursement of indirect research costs that will have a devastating impact of the U.S. biomedical lab infrastructure.  Universities are already reducing the number of graduate students in biomedical fields,  The University of Pennsylvania has stopped doctoral admissions altogether.  
• The NIH has cancelled or suspended hundreds of research projects, including more than 100 clinical trials that may be forced to halt.  
• Yesterday, a large number of NIH employees were terminated.  The terminations were not just "administrative" positions--scientists were terminated as well.  The directs of five NIH institutes were reassigned to remote positions in the Indian Health Service, and key scientists overseeing projects on sickle cell disease, neurodevelopmental disorders and pandemic preparedness were terminated as well. At least ten principal investigators who were leading and directing medical research at NIH were fired, including a leading investigator on neurodegenerative disorders responsible for recent groundbreaking research on Parkinson's. 
• Remarkably "[r]oughly a  quarter of the agency's staff has been cut since the start of Trump's second term. " 

Sadly, despite their strong support for NIH in the past, key Republican members of Congress have been silent, apparently cowed by fear of MAGA.

The mystery is why this is happening.  I have a few theories.  First, most of the NIH research is done by Universities.  This could be yet another "own the Libs" initiative focused on Universities.  Second, Musk and his DOGE minions come from a tech bro culture that doesn't see the need for government-supported research.  The assumption is that Big Pharma will pick up the slack.  They are wrong.  Big Pharma largely invests only after the basic science is developed--which is what NIH does,  Finally, the new HHS Secretary and his spokesmen have touted the need to invest more in prevention and less in treatments,  It could be they see less value in developing new treatments for disease.

I doubt that the Trump voters thought that they were voting to halt research that could lead to promising new treatments for cancer, heart disease, Alzheimer's or Parkinson's,  but appears to be the directions of the Trump Administration.  Let's hope that Republican supporters of biomedical research in Congress finally show some courage and fight these devastating cuts.  (Don't hold your breath.)

About That Signals Chat

 This week, the Atlantic Magazine published the stunning report that the Trump national security team (including the National Security Advisor, Secretaries of Defense and State, the CIA Director and the Director of National Intelligence) had discussed a pending attack on Houthis in Yemen over a third party testing platform known as Signal.  In response, the Trump Administration doubled down in its claims that no classified information was disclosed.  In response, the Atlantic published the entire text chain.    

Here are my thoughts after reviewing the Signals chat.

First, even if the information had been unclassified, it was legally problematic to have this discussion on a non-governmental network.  It was wrong for Hilary Clinton to use a private email service for official business, and it was wrong for the Trump Administration officials to use Signal.  The Federal Records Act requires that documents about federal activities (which include electronic records) must be saved.  For White House officials such as Mike Waltz and Stephen Miller, the requirements are even more stringent requirements due to the Presidential Records Act of 1978.  When I worked in the Executive Office of the President under President Clinton, a copy of every email I sent was automatically copied.  It may be that the Administration has a system to keep records of Signals chats, but they have yet to make this claim.

Moreover, even if the information was not classified, it was certainly highly sensitive and could be damaging should our adversaries get access.  The chat, after all, concerned the decision to take military action at a particular time, and the details of the pending attack was ultimately set out in some detail by the Secretary of Defense.  As the Atlantic notes:

At 11:44 a.m. eastern time, Hegseth posted in the chat, in all caps, “TEAM UPDATE:”

The text beneath this began, “TIME NOW (1144et): Weather is FAVORABLE. Just CONFIRMED w/CENTCOM we are a GO for mission launch.” Centcom, or Central Command, is the military’s combatant command for the Middle East. The Hegseth text continues:

• “1215et: F-18s LAUNCH (1st strike package)”
• “1345: ‘Trigger Based’ F-18 1st Strike Window Starts (Target Terrorist is @ his Known Location so SHOULD BE ON TIME – also, Strike Drones Launch (MQ-9s)”

The Hegseth text then continued:

• “1410: More F-18s LAUNCH (2nd strike package)”
• “1415: Strike Drones on Target (THIS IS WHEN THE FIRST BOMBS WILL DEFINITELY DROP, pending earlier ‘Trigger Based’ targets)”
• “1536 F-18 2nd Strike Starts – also, first sea-based Tomahawks launched.”
• “MORE TO FOLLOW (per timeline)”
• “We are currently clean on OPSEC”—that is, operational security.
• “Godspeed to our Warriors.”

While Signal protects communications with end-to-end encryption, its messages are vulnerable once on a device.  It is not approved for this type of sensitive discussion.  Smartphones are very vulnerable to hacking.  It is for this reason that classified discussions are supposed to be help in secure locations (generally SCIFS)  in which phones are not allowed.  One of the participants was in  Moscow at the time, which makes this especially concerning.

Second, the claim that information about the timing, location, target and weapons systems related to an eminent military strike is simply not credible.  If it was not classified, it should have been.  If the Houthis had received this information before the attack, they could have taken defensive actions that could have protected the targets and endangered the lives of the Navy pilots.  The potential damage to national security here is much higher that that deemed sufficient for a Top Secret classification.  If the information was not classified (perhaps for the convenience of the participants ) it should have been.  

 

What's Up With Trump Firing Democratic Members of the FTC, EEOC, NLRB and Other Agencies?

 At least since Congress created the Interstate Commerce Commission to regulate railroads in 1887, Congress has relied on multi-member boards--made up of members of both parties who served for a term of years--to oversee major parts of the U.S. economy.  Following the creation of the ICC, Congress then gave extensive regulatory authority to other multi-member boards: the Federal Reserve in 1913, the Federal Trade Commission in 1914,the Federal Communications Commission in 1934  the National Labor Relations Board in 1935 and the Equal Employment Opportunity Commission in 1965.  And many others as well through the years.  These bodies all share the same features--the Commissioners are appointed by the President for a term of years (generally longer than a Presidential term) on a staggered basis and the Commissions can only be removed by the President for cause.

As you may have read, Trump has fired--or at least attempted to fire--Commissioners appointed by Democratic Presidents on many of these Boards without cause.  This is despite a 1935 Supreme Court case holding that the President did not have the authority to remove members of the FTC without evidence of inefficiency, neglect of duty or malfeasance in office.  In Humphrey's Executor v. United States, the Supreme Court explained that while the President generally had the authority to remove executive officers at will, the President did not have the authority to remove members of boards like the FTC that have "quasi-legislative" and "quasi-judicial" powers given to it by Congress.

At the time, Humphrey's Executor was view as a conservative victory over President Roosevelt, but in recent years, the case has been sharply criticized by conservative scholars who asset of theory called "unitary executive power", which holds that the Constitution vests the President with sole power over federal agencies.  In the extreme version of this theory, even the power over the career civil service is exclusively vested in the President, but even more moderate versions would give the President power over agencies like the FTC.

Given Humphrey's Executor, we should expect challenges to the firings to be successful in both federal district court and in the federal courts of appeal since these courts are bound by the Supreme Court precedent.  The real issue will be how the Trump Administration will fare once these cases reach the Supreme Court.  At least two Justices (Thomas and Gorsuch) are on record in a concurring opinion in Seila Law LLC v. CFPB with the view that Humphrey's Executor should be overruled.  Given the conservative makeup of the Court, as well as the fact that recent cases have upheld strong claims of Presidential power, a decision to overrule Humphrey's Executor and uphold Trump's firings of the Commissioners is a distinct possibility.

There are many reasons why this would be a mistake.  While the drafters of the Constitution did not likely contemplate the emergence of the Administrative State that arose in the 20th Century, the text of the Constitution hardly supports the notion that Congress had no say over the running of executive agencies.  Article 1, Section 8 expressly gives Congress the power to make laws "necessary and proper for carrying into execution . . . all other powers vested in this Constitution in the government of the United States, or in any department or officer thereof."  This certainly seems to mean that Congress can make laws that govern the Executive Branch.  Peter Shane offers a longer argument about the Constitutional basis for Humphrey's Executor that is well worth a read.

More fundamentally, this model of multi-member bodies has been in existence since at least 1887 (and there was a multi-member body called the Sinking Fund even earlier in our history).  This is almost half of our history as a Constitutional Republic.  Humphrey's Executor itself is almost 90 years old.  Congress has relied on this history in giving authority to federal agencies, and an abrupt decision to reverse the case would retroactively change the balance that Congress established in setting up the Commissions.

And having multi-member federal bodies made up of appointees of several Presidents has served us well over the years.  As Peter Shane notes, these bodies "foster deliberation, provide a monitoring system for each party through the capacity for dissent, reduce the prospects for agency “capture” by special interests, and promote impartiality in the administration of statutes."

Let's hope the Supreme Court agrees and upholds Humphrey's Executor.

The Trump Administration Attack on Due Process--and Why It's So Dangerous

 This past weekend, the Trump Administration took over 100 men that it claims are members of a Venezuelan gang and sent them to a notorious prison in El Salvador.  These men were not merely deported--they were sent to a foreign prison.  They were not given any opportunity to contest their alleged links to the gang--or even whether they had legal status in the U.S.  The Department of Homeland Security acted as the exclusive decisionmaker.

This is disturbing.  To be clear, I have no problems with the deportation of undocumented aliens who are members of a criminal gang.  Indeed, if you look at the legal filings by the ACLU and others who tried to stop sending these men to an El Salvadoran prison, even they do not contest the right of the U.S. to deport these men.  Instead, the troubling aspect of this case is the lack of any due process--which is guaranteed under the Fifth Amendment to the U.S. Constitution.

This is only the latest attempt by the Trump Administration to take action against businesses and individuals without due process.  Of most concern is that Trump Administration seems to be taking the position in these cases that that no process (whether in court or otherwise) is due:

• The Administration fired thousands of probationary employees without any process, using a form letter alleging poor performance without even consulting with the employee supervisors.

• The Administration took extraordinary action against three law firms--one of which was my old firm, Perkins Coie--again with no due process. The measures against two of the firms--Perkins Coie and Paul Weiss--will have immediate financial harm.  In addition to suspending all security clearances held by the firms' lawyers, the Executive Order provides that the firms' employees cannot even be admitted to federal buildings or engage with federal agencies.  Most disturbingly, the order orders agencies to cease doing work with the firms' clients.  All of this was done without providing any due process.

Many of my MAGA friends (and yes, I do have MAGA friends) are thrilled with all of these actions because they dislike the victims of these orders.  Apparently, Venezuelan gang members and White Shoe law firms are not very popular with these folks.  

I would argue, however, that even if you applaud the actions, you ought to be very disturbed by the lack of due process.  Why should you care?  I can think of at least three reasons.

First, even honest and diligent government officials can make mistakes. When I was on the Board of the Florence Project, I was always amazed at the number of U.S. Citizens detained in DHS facilities for removal the Project represented.  The number was not large, but it brought home to me the importance of giving detainees the right to contest removal before a neutral decisionmaker. This issue is at play in the Venezuelan case--the removal is based on the allegation that those being removed are members of a gang, and many of those removed (and their family members) insist that this is not the case.  DHS is not infallible, and the factual basis of a decision to send someone  to a notorious El Salvadoran prison ought to be proven.

Second, in the absence of due process, Executive action can be abused.  When we have an Administration that has already sent thousands of identical form letters to probationary employees alleging poor performance--with no factual basis--the concern that extraordinary and unchecked power will be abused is not an idle concern.  If the Administration has unchecked power to deport members of a gang, what is stop it from asserting they YOU are a member of that gang?  Absent due process, you have no power to contest the allegation.  And if the Administration has the unchecked power to financially harm law firms because of their role in cases involving Donald Trump, what is to stop the Administration doing the same to other law firms and businesses that take actions that the Administration does not like.

On this point, it is important to note that the fact that many of these actions will ultimately be stopped by the courts is not enough.  Until the courts intervene, the damage is done.  I have no doubt that lawyers and their clients are already being more unduly cautious in their engagements with the Trump Administration out of fear of what may come next. This chilling affect is dangerous for the rule of law.

Finally, even if you are cynical person unconcerned with the absence of due process, you ought to be concerned with the precedent these actions set for a future Democratic Administration.  If the Trump Administration is successful in retaliating against people and businesses it dislikes, a future Democratic Administration can do the same--to YOU.

There is a reason our Constitution has a right to due process in both the Fifth and Fourteenth Amendment.  There is also a reason why the Constitution empowers an independent branch of government (the Courts) to force these Constitutional requirements.