May 16, 2025

Overview
The U.S. Supreme Court’s May 16, 2025 ruling limited the Trump administration’s use of the Alien Enemies Act for deportations. This article examines if congressional actions could enable expedited deportations, akin to COVID-19-era border policies under Title 42. With the U.S. facing a national debt of $35.7 trillion and a recent credit rating downgrade by Moody’s from AAA to AA1, evaluating the costs of due process and if the U.S. truly is at war are matters appropriate for the legislative branch, not the executive or judicial branches.

Facts

• Title 42 (COVID-19 Policy): From March 2020 to May 2023, Congress supported the CDC’s Title 42 order, allowing Customs and Border Protection (CBP) to expel 2.3 million migrants at the border without immigration hearings or due process, citing public health risks.
• Alien Enemies Act (1798): Invoked by the Trump administration in March 2025 to deport 137 Venezuelans, the Act was limited by the Supreme Court on May 16, 2025, clarifying the U.S. Constitution requires notice and habeas corpus access for detainees.
• U.S. Debt and Credit Downgrade: As of May 2025, the U.S. national debt stands at $35.7 trillion (120% of GDP), with Moody’s downgrading the U.S. credit rating citing fiscal deficits and rising interest costs.
• Due Process Costs: A 2019 Houston Law Review study estimated that providing habeas corpus proceedings for noncitizens in expedited removal could cost $500 million annually, excluding court backlogs and detention expenses. Illegal reentry convictions, often tied to prior deportations, cost taxpayers over $500 million yearly.
• Current Immigration Enforcement: U.S. Border Patrol arrested 8,400 migrants crossing illegally in April 2025. ICE operates 33,000 detention beds, with an annual budget of $3.4 billion.
• Amending the U.S. Constitution: There are no serious discussions to amend the U.S. Constitution at the time this article was published.

Additional Habeas Corpus Facts:

• Habeas corpus is a legal writ that protects individuals from unlawful detention by allowing a court to review the legality of their imprisonment. Rooted in English common law and enshrined in the U.S. Constitution (Article I, Section 9), it requires authorities to justify the basis for any person’s detention. By ensuring that no one can be held without cause or due process, habeas corpus serves as a cornerstone of individual liberty and the rule of law.
• 1861–1865 (Civil War suspension): President Abraham Lincoln first suspended the writ in Maryland in April 1861 and, after Congress passed the Habeas Corpus Suspension Act on March 3, 1863, extended the suspension nationwide for cases involving spies, traitors, military personnel, and prisoners of war. President Andrew Johnson revoked it on December 1, 1865.
• 1871 (Reconstruction suspension): Under the Enforcement Act of April 20, 1871, President Ulysses S. Grant suspended habeas corpus in nine South Carolina counties to suppress Ku Klux Klan violence; the suspension ended with the close of the next session of Congress.
• 1905 (Philippine Insurrection suspension): Governor-General Luke Edward Wright suspended the writ in two provinces of the Philippine Islands from January 31 to October 15 1905 to quell unrest; the U.S. Supreme Court upheld this in Fisher v. Baker (1906).
• 1941–1944 (World War II, Hawaii suspension): After Pearl Harbor, the Territory of Hawaii’s governor, Joseph Poindexter, declared martial law and suspended habeas corpus; civilians were detained and tried by military tribunals until Duncan v. Kahanamoku (1946) limited that authority.
• 2006 (Military Commissions Act suspension): The MCA stripped federal courts of jurisdiction to hear habeas petitions from non-citizen “enemy combatants,” effectively suspending the writ for those detainees until the Supreme Court’s decision in Boumediene v. Bush (2008) restored their rights.

Perspectives

• American Immigration Council (Jane Grauman, Policy Director): Opposes limiting due process, asserting that habeas corpus protects against mistaken deportations. It warns that mass deportations could cost $315 billion, offsetting fiscal savings.
• Senator Chris Van Hollen: Van Hollen criticizes proposals to suspend habeas corpus, emphasizing that even noncitizens have constitutional protections.
• Department of Homeland Security (Secretary Kristi Noem): Noem suggests that illegal immigration levels may justify suspending habeas corpus, framing border crossings as an “invasion.”
• ACLU: The ACLU argues that only Congress can suspend habeas corpus, not the president, and that peacetime suspension is unconstitutional. It highlights successful habeas petitions, like those for Venezuelan detainees, as essential to preventing abuses.
• Center for Immigration Studies: The Center proposes legislative reforms, such as moving Convention Against Torture claims to DHS and limiting asylum continuances, to expedite deportations.

Considerations

• Congress could pass a law expanding Title 8 expedited removal to cover migrants detained within two years of entry, bypassing judicial review, but courts may view this as violating due process for noncitizens.
• A declaration of war to justify habeas corpus suspension is unlikely absent a clear foreign threat, as federal judges have rejected “invasion” claims for immigration since March 2025.
• Legislation limiting habeas corpus to U.S. citizens would face constitutional scrutiny, as the Supreme Court’s 2008 Guantanamo ruling extended habeas rights to noncitizens on U.S. soil.
• Short-term savings from expedited deportations could be offset by long-term costs, including $500 million annually for illegal reentry prosecutions and potential trade disruptions with deportation recipient countries like El Salvador.
• The U.S. debt crisis and AA1 credit rating increase borrowing costs, pressuring Congress to prioritize cost-effective immigration policies, but mass deportation programs could exacerbate deficits.
• Reducing due process may deter illegal immigration but risks eroding public trust in the judiciary, especially after high-profile errors like the Abrego Garcia case.
• Congressional action to streamline deportations must balance fiscal constraints with constitutional protections, as legal challenges could delay implementation and increase litigation costs.

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