The Upcoming Court of Appeals Argument in the Alien Enemies Act Case

At 1:30 p.m. today, March 24, the U.S. Court of Appeals for the District of Columbia Circuit will hear arguments on whether to stay a temporary restraining order issued on March 15, which is currently barring summary removals of alleged members of Tren de Aragua, a Venezuelan criminal gang, under the Alien Enemies Act of 1798.

The argument is not about the matter in the case that has understandably most transfixed the nation: Whether the Trump Administration baldly defied that order moments after it was issued. At roughly 6:50 p.m. on March 15, in the middle of a hastily convened hearing, Chief U.S. District Judge James Boasberg orally ordered Department of Justice attorney Drew Ensign to inform his clients “immediately” to stop removals under that act, including by, if necessary, “turning around a plane.” That order was not followed. Two planes, which appear to have taken off after the TRO hearing began but before the oral order was delivered, continued on their way and eventually landed in Honduras, according to multiple media reports. They then apparently took off again and, early the next morning, landed in El Salvador, according to those same reports.

While the government’s compliance or noncompliance with Boasberg’s oral order is very much a live issue—on Friday, Boasberg vowed: “I will get to the bottom of whether they violated my order [and] who ordered this”—today’s appellate court hearing is about other matters. It’s about whether Boasberg had jurisdiction to issue that order, which was actually, as we’ll see, two orders.

First, let’s step back and review the basics. On March 15, the Trump administration unveiled a proclamation invoking the Alien Enemies Act against an “invasion” by Tren de Aragua. In 237 years, that act had only previously been used when there had been a declared war—specifically, the War of 1812, World War I, or World War II. Still, by its terms, the statute does say that it can be invoked in the absence of a declared war if there has been an “invasion” or “predatory incursion ... by any foreign nation or government”:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

But how can Tren de Aragua, a Venezuelan criminal gang, be a “foreign nation or government”? And is a gradual process of immigration—even illegal immigration—an “invasion” or “predatory incursion” within the meaning of the act?

To finesse those questions, the proclamation makes certain “find[ings].” It finds, for instance, that Tren de Aragua has “unlawfully infiltrated” the United States and that it conducts “irregular warfare” here. Further, it is “closely aligned with, and indeed has infiltrated the Maduro regime.” Over the years, it continues, Venezuelan authorities have “ceded ever-greater control over their territories” to various criminal gangs, including Tren de Aragua, which has made Venezuela a “hybrid criminal state.”

The proclamation then purports to permit Trump to summarily apprehend and remove anyone it deems to be a member of Tren de Aragua who is more than 14 years of age and “not actually naturalized or lawful permanent residents”—i.e., not citizens or holders of a green card.

Though the proclamation indicates on its face that Trump signed it on March 14, it was initially kept secret. (The Alien Enemies Act requires the proclamation to be “public.”) After lawyers for the American Civil Liberties Union and Democracy Forward learned that the proclamation was in the works, they filed a suit, seeking class action status, in the early morning hours of March 15, before the proclamation had even become public.

By then, five of their clients, who are Venezuelans detained in the U.S. who deny being Tren de Araguan members, had already been abruptly moved, they allege, from various detention centers across the country to El Valle Detention Center in Texas. This process began on March 8 or 9, according to the complaint, and in some cases it prevented the plaintiffs from attending scheduled asylum hearings. The clients—and perhaps other sources—were telling the plaintiffs lawyers that they were going to be flown out of the country within hours, if not minutes. (The five plaintiffs were permitted to file pseudonymously, identified only by their initials. The caption is J.G.G. v. Trump.)

In this crisis context, Judge Boasberg issued by minute order, around midday a short temporary restraining order barring removal of the five named plaintiffs for 14 days. It was intended, he explained, to allow time to at least hear the dispute. The Trump Administration immediately filed a notice of appeal.

At this point, the proclamation still wasn’t even public. It would not be made so until 3:53pm, about an hour before the 5 p.m. hearing on the restraining order that Boasberg had set. On Friday, Boasberg expressed some wonderment about why the proclamation, ostensibly signed on March 14, was kept secret.

MR. ENSIGN: The government is complying with the law as it understands the law to be.
THE COURT: Exactly. I guess—and maybe you don't have the answers to this, but what's concerning to me is, if that's so, why was this proclamation essentially signed in the dark on Friday, Friday night, or early Saturday morning, and then these people rushed onto planes? I mean, it seems to me the only reason to do that is if you know it's a problem and you want to get them out of the country before suit is filed. Can you tell me a little bit about the timing of this?
MR. ENSIGN: Your Honor, I don't have knowledge of those operational details.

(A strange additional issue has arisen since briefing before the appellate court was completed. On March 22, Trump told CNN, “I don’t know when it was signed because I didn’t sign it.” It’s unclear how this assertion might impact the case.)

During that same initial hearing on March 15, sometime after 6 p.m., Boasberg said he was provisionally certifying of “[a]ll noncitizens in U.S. custody who are subject to” the proclamation and barring their removal if it was being accomplished solely on the basis of the Alien Enemies Act. After the hearing, Boasberg issued a written minute order memorializing the rulings, and the government immediately appealed that, also. (Just this morning, Boasberg issued a 37-page ruling declining a government motion to rescind his orders.)

So in today’s proceeding before the D.C. Circuit, the Trump Administration is seeking stays of both of Boasberg’s orders—the temporary restraining order and the class certification.

There are at least three different kinds of jurisdictional issues presented. The threshold one is: Are Judge Boasberg’s orders even appealable. Temporary restraining orders usually are not. The government claims, however, that these orders must be appealable because they create an immediate and “unprecedented intrusion” on executive power.

The plaintiffs maintain that there is no reason to depart from the normal rule—that temporary restraining orders are not appealable—because nothing in Boasberg’s order stops the government from arresting, detaining or even removing alleged Tren de Aragua members under normal deportation procedures. 

Trump’s second argument is that his Alien Enemies Act proclamation is unreviewable.  And it is true that courts have found that some aspects of Alien Enemies Act orders to be unreviewable. At the same time, they’ve also recognized that other aspects of those orders certainly are reviewable.   

For instance, in the Ludecke v Watkins, the U.S. Supreme Court reviewed the case of a German national who was arrested under the Alien Enemies Act in 1941, during World War II—a declared war. In that case, there was no dispute that he was a German national, that the United States was at war with Germany, and that the act applied to Ludecke at the time of his arrest. After proceedings before an Alien Enemy Hearing Board—to which there has been no remote parallel in the Tren de Aragua cases—the government tried to remove Ludecke in 1946.

Ludecke then protested that the war was over. The president responded that, while hostilities had ended, the war had not yet been formally concluded—a view that Congress shared. In 1948, the U.S. Supreme Court held, 5-4, that, in this posture, the president’s finding about whether the war had ended was unreviewable.

It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.

At the same time, the majority also said courts could review whether someone was “an alien enemy” who came within the act:

The additional question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may also be reviewed by the courts. See cases cited note 8, supra. This question is not raised in this case.

The footnote 8 referred to here listed more than a dozen precedents, including still-binding D.C. Circuit rulings, in which courts had engaged in judicial review to ensure that the statutory predicates of the Alien Enemy Act were met in particular cases.

Last Friday, at a hearing before Boasberg, Justice Department attorney Ensign conceded that some statutory preconditions for invoking the AEA are, in fact, reviewable. But he insisted that such review could only take place in the context of a habeas corpus action. That gets us to the last issue—and maybe the most important—before the Court of Appeals today. 

The plaintiffs allege in their complaint that the government is acting beyond its statutory powers and violating the Administrative Procedure Act, the Immigration and Nationality Act, & several other federal laws. They filed the case in the District of Columbia on the theory that most of the defendants—Attorney General Pam Bondi, Homeland Security Secretary Kristi Noem, and so on—live in the District of Columbia. See 28 U.S.C. Section 1391(e)(1)(A).

But the complaint also lists the habeas corpus statute as a basis for jurisdiction. Habeas corpus is a remedy for plaintiffs in custody. But habeas ordinarily has to be brought where the plaintiff is confined. All named plaintiffs in the J.G.G. case were in Texas on March 15, when the case was filed. None were in the District of Columbia. (In fact, none had even been transferred to Texas from the District. 

So the government is pushing hard that, assuming the Trump Administration’s actions can be reviewed at all, they must be reviewed in the Southern District of Texas. That’s in the Fifth Circuit, whose court of appeals is widely seen as the most  conservative in the country—even more so than the Supreme Court.

Still, the plaintiffs have a plausible argument that this case is not a habeas corpus case at its core. They’re not seeking release, which is usually the focus of habeas. They’re not even challenging the conditions of their confinement. They’re simply trying to avoid summary removal from the country without standard immigration-law due-process protections.

Alas, today’s argument may well revolve around the habeas question—the least interesting and most perfunctory of the extraordinary issues presented.

The motions panel hearing the case is relatively conservative, as D.C. Circuit panels go. It will consist of Karen LeCraft Henderson (appointed to the district court by President Reagan and elevated to the D.C. Circuit by George H.W. Bush); Patricia Millett (Obama); and Justin Walker (Trump).