The ink was barely dry on the Supreme Court’s 5-4 decision lifting the stay on deportations under the Alien Enemies Act when the legacy media began breathlessly quoting Justice Sonia Sotomayor’s dissent—in apocalyptic tones.
Her warning? That under the Court’s logic, an American citizen could be deported—stripped of rights, booted from the country, exiled without due process, never to return.
Cue the headlines. Cue the hashtags. Cue the hair-on-fire social media engagement from people who haven’t read the statute, the ruling, or a single line of immigration law in their lives.
One not-so-insignificant problem here is that her argument is legally incoherent, constitutionally unserious, and factually implausible. More than a few logical fallacies are also greasing this rabbit hole’s tunnel into Abaddon.
But that’s par for the course these days—especially when the audience isn’t fellow jurists but cable news anchors and social media bots.
Let’s be clear: the Alien Enemies Act applies to aliens, not citizens. The text refers explicitly to “subjects of a foreign nation.” It has never—not once in over 225 years of existence—been applied to a U.S. citizen. This isn’t a gray area. It’s not ambiguous.
It’s a fundamental category error that wouldn’t pass a first-year law school exam.
Even worse, it wasn’t just made—it was practically shouted from the rooftop of the Supreme Court Building, seemingly to inflame and distort rather than interpret and clarify.
And it did precisely that. And that’s the real danger here: not that Americans might suddenly be deported under the Alien Enemies Act, but that the public is being misled about what the law says.
Sotomayor’s dissent also trots out the banner of “due process.” But here again, the analysis collapses. Due process means precisely that—you receive the process you are due. Under the AEA, that process is—and always has been—limited.
In Ludecke v. Watkins (1948), the Supreme Court held that judicial review of AEA deportations is narrow. It may include habeas corpus, but even that is tightly constrained. The statute was crafted for exigent national security—not as a tabula rasa for district court judges eager to play policymaker with a gavel.
American citizens, by contrast, are not subject to the AEA at all. Why? Because they are not aliens. Simple stuff and I’m no justice of the Supreme Court. It is the bedrock premise of the entire statute. To suggest otherwise is to collapse the distinction between citizen and non-citizen, between sovereignty and abstraction.
But this dissent wasn’t written for the U.S. Reports. It was written for amplification. For outrage. For engagement. This was fearmongering dressed in black robes, force-feeding talking points to trolling social media bots and breathing the sanctified air of MSNBC studios at 30 Rock—or wherever they broadcast from these days.
Or, to borrow Justice Jackson’s own term—who joined Justice Sotomayor—it was “fly-by-night” jurisprudence. Slapdash brummagem.
And the press took the bait. Could YOU be deported under Trump’s immigration plan became the subtext of the coverage as if the Court had greenlit some constitutional dystopia. But that’s not analysis—it’s political fan fiction.
Meanwhile, the real work of procedural sabotage rolls on. Within days of the ruling, the ACLU filed a class action habeas petition in the Southern District of New York—not just on behalf of individual Venezuelan nationals but seeking recognition of a nationwide class.
If granted, a single district judge in Manhattan could block enforcement of the AEA across the country, regardless of venue, standing, or national interest. It’s not about redress—it’s about control. Call it Rule 23 meets the Resistance.
Say what you will about Ruth Bader Ginsburg—she had sharp clerks, a command of the law, and a discipline that kept her grounded in legal reasoning, even when writing from the Left.
By contrast, Sotomayor increasingly produces dissents that read like activist press releases stapled to a Bluebook. Sotomayor is no RBG, and based on this latest effort, she may need better clerks.
The Alien Enemies Act remains good law. It gives the president—not the judiciary—discretion to remove hostile foreign nationals during times of national peril.
That authority is not limited to declared wars. The statute also applies when a foreign government perpetrates or threatens an invasion or predatory incursion—language that covers a wider range of irregular or asymmetric threats.
That authority has never extended to American citizens, and no serious jurist would argue that it should—though one dissent, it seems, would like you to imagine that danger lurking in some penumbra.
But the facts of the case before the Court weren’t the point. This dissent was about fogging the battlefield, confusing the public, and distorting the stakes.
It can’t change the law. But it can poison the discourse.
video screen grab.
Jesus Christ is King
Comments are closed.