Richard Bernstein: The Supreme Court Gives Three Cheers to the Rule of Law

How fortunate we are still to live in a country where the Executive Branch cannot legally send a person to a foreign prison with no hope of return and before the United States Supreme Court has an opportunity to decide whether that action would be illegal.  The Supreme Court’s May 16 decision in A.A.R.P. v. Trump, 2025 WL 1417281 (2025), reaffirmed our great fortune to live in a country where the rule of law, including due process and the separation of powers, protects everyone.

In A.A.R.P., the Trump Administration sought to remove from Texas to a prison in El Salvador alleged members of a Venezuelan gang, Tren de Aragua (TdA).  The Administration claimed that the removals were authorized by the Alien Enemies Act (AEA).  A federal district court and the Fifth Circuit were asked to halt the removals, so that alleged TdA members could first be heard in federal court both that they had not received due process and that the AEA did not authorize the President’s Proclamation on which the removals were based.  Both those lower courts refused to halt the removals, even temporarily.  The Supreme Court said not so fast.  It enjoined the Administration from removing the alleged TdA members before the Fifth Circuit addressed the due process and AEA issues and before the Supreme Court at least had the opportunity to review those Fifth Circuit rulings.  As Justice Kavanaugh emphasized in his concurrence:  “The injunction simply ensures that the Judiciary can decide whether these Venezuelan detainees may be lawfully removed under the Alien Enemies Act before they are in fact removed.”  Id. at *4 (emphases in original).

The Three Cheers

The Supreme Court’s decision upheld the rule of law in three critical ways. First, contrary to the Administration’s out-of-court talking points, the Court reaffirmed that, as the Fifth Amendment states, “due process of law” protects “any person,” no matter how despised.  Even for foreign detainees accused of heinous activity, due process “protects against the mistaken or unjustified deprivation of life, liberty, or property.”  Id. at *2 (cleaned up).  And due process requires a real opportunity for a person to convince a federal court that the Executive Branch’s action would be illegal.  The Supreme Court ruled that meant “a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.”  Id.

Second, the Supreme Court protected the separation of powers by preventing the Executive Branch from preemptively depriving the federal courts of their judicial power to decide whether an Executive Branch action is illegal.  In A.A.R.P., the Administration not only wanted to remove the alleged TdA members to an El Salvador prison before the due process and AEA issues were addressed by any court, but also had claimed that once that removal occurred, “no U.S. court ha[s] jurisdiction to order relief”  even if the removal had been illegal.  Id. at *1.  The Supreme Court properly recognized that this scheme threatened the Supreme Court’s jurisdiction.  It therefore enjoined the government from removing the alleged TdA members before not merely the Fifth Circuit ruled on whether the constitution or the AEA did not authorize the removals, but also before the Supreme Court likewise had the opportunity to address those merits issues.  Id. at *4.  This was necessary “in order to preserve our jurisdiction pending appeal.”  Id. at *3.  That jurisdiction enables the Supreme Court, not the President, to be the final arbiter of the legality of Executive Branch action.

Article III of the Constitution vests “[t]he judicial Power” in the federal courts, not the Executive Branch.  As Madison explained, quoting Montesquieu, “the power of judging” cannot properly be “joined to the executive power.” The Federalist, No. 47.  Hamilton added, also quoting Montesquieu, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”  Id., No. 78.  Simply put, the Executive Branch cannot make itself the final judge of the legality of its own actions.

Third, the Supreme Court recognized that due process and separation of powers do not vanish entirely from the Constitution in cases affecting “significan[t] . . . national security interests.”A.A.R.P., 2025 WL 1417281, at *2.  In that context as in all others, the federal courts have the judicial power to interpret the extent to which due process and separation of powers restrain the Executive Branch.  Id.  This is particularly important when, as now, the Executive Branch asserts that its national security powers encompass ever-widening spheres of our national life.

Flawed Criticism, Necessary Compliance

On Truth Social, President Trump criticized the A.A.R.P decision:  “The Supreme Court of the United States is not allowing me to do what I was elected to do.”  Any President is free to criticize harshly any Supreme Court decision.  But here, the President’s argument misses the mark.  The American people did not and cannot elect any President unilaterally to rip due process or separation of powers out of the Constitution.  Nor does a President’s election make any President, rather than the Supreme Court, the final adjudicator of when due process and separation of powers restrain the Executive Branch.  Any such monumental changes to our constitutional republic would require a constitutional amendment.  President Trump is free to propose such an amendment.  In my opinion, it would not go far.

Despite President Trump’s criticism of the Supreme Court’s A.A.R.P. decision, so far the Administration has complied.  Indeed, it must comply under the promises the Administration made on May 15, 2025, to the Supreme Court through President Trump’s chief Supreme Court lawyer.  The highly-able Solicitor General D. John Sauer repeatedly told the Supreme Court that “this Court’s decisions constitute controlling precedent throughout the nation,” and promised that it will remain this Administration’s “categorical practice” always to respect both “the precedents and the judgments of the Supreme Court” without any “hedging at all.”  Oral Arg. Tr., Trump v. CASA, Inc., No. 24A884, at 54-55, 63 (May 15, 2025).  The rule of law embodied in our Constitution would not allow it any other way.