There’s a 12 p.m. ET deadline Thursday for the Trump administration to answer U.S. District Judge James Boasberg’s questions about whether officials violated his orders on deportations. But while that crucial issue is pending, there’s also the underlying litigation about what started the class action lawsuit in the first place: President Donald Trump’s attempt to use the Alien Enemies Act to summarily remove people from the country who the government said belong to the gang Tren de Aragua.
As a reminder, the 1798 act says:
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 by 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.
You’ll notice the reference to a “declared war” or “invasion or predatory incursion” by a foreign nation or government.
So how, you might wonder, could the act apply if we’re talking about a gang, rather than a nation or government?
Trump’s proclamation said the group is a designated Foreign Terrorist Organization whose members “have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States.” But however persuasive or not it is to apply the 18th-century law in this situation, his administration has argued that courts lack the power to review or enjoin his proclamation.
In their latest court filing, the American Civil Liberties Union lawyers who brought the suit called the implications of Trump’s position “staggering.” The plaintiffs wrote: “If the President can label any group as enemy aliens under the Act, and that designation is unreviewable, then there is no limit on who can be sent to a Salvadoran prison, or any limit on how long they will remain there.” They noted that the act has been invoked three times before — all during declared wars.
Their filing comes in opposition to the government’s motion to vacate Boasberg’s temporary restraining orders halting deportations under the act (the same orders that officials may have violated, which is what Boasberg still has questions about). Opposing that motion, plaintiffs say part of the problem is that the government is simply claiming that the people Trump wants deported are dangerous gang members engaged in an invasion or predatory incursion but without giving them the chance to contest that claim.
“Notably, some Plaintiffs’ asylum claims assert the real fear of harm upon returning even to Venezuela because they fled the very same violent gangs the Government has wrongfully accused them of belonging to,” they wrote to Boasberg, the chief federal trial judge in Washington, D.C. They pointed out that keeping his orders in place wouldn’t mean that people can’t be detained or deported at all, just that Trump wouldn’t be able to use this wartime authority for that purpose here. While the government seeks to convince Boasberg to upend his orders, officials are also trying to get the Washington, D.C.-based federal appeals court to halt them, with an appellate hearing set for Monday. The government has even asked the appeals court to kick Boasberg off the case, while Trump has called for the judge’s impeachment, prompting a rebuke from Chief Justice John Roberts. But in addition to the pending question of whether Boasberg thinks officials have violated his orders — and the important follow-up question of what he’d do about it, if so — there are the “staggering,” to use the plaintiffs’ word, implications of the government’s position overall. The courts therefore have an equally important task of sorting out both the merits of this issue and the government’s compliance with court orders during this litigation. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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