Justices Alito and Thomas Tear SCOTUS Majority for 1 a.m. TdA Ruling

The Supreme Court issued an order over the weekend blocking removals of “Venezuelan men in immigration custody” detained in the jurisdiction of the U.S. District Court for the Northern District of Texas facing removal under the Alien Enemies Act (AEA) as members of the designated foreign terrorist organization (FTO), Tren de Aragua (TdA) — at 1 a.m. on Saturday morning. Justices Alito and Thomas dissented, with the latter promising to explain his reasons later. That afternoon, writing for himself and Justice Thomas, he did—and he didn’t hold back.

TdA and the FTO Designation

The Center has written extensively about TdA ever since they exploited the Biden border crisis to establish a foothold in the United States, and have repeatedly analyzed the Trump administration’s designation of the group as an FTO and the president’s decision to use the AEA to remove TdA members from this country. Here’s the Reader’s Digest version. 

TdA got its start around 2013 in Tocoron prison in the Venezuelan state of Aragua, under the bloodless guidance of Hector Rustherford Guerrero Flores, alias “Niño Guerrero”.

It then expanded beyond the prison, going international when its operations stretched across Venezuela to reach the Colombian border. 

There, it clashed with existing Colombian criminal groups like the National Liberation Army (ELN), and once it gained a foothold in the border town of La Parada (a crossing point for Venezuelan emigres), it began exploiting migrants and seizing smuggling routes. 

TdA’s network then spread like a cancer through South America, according to InSight Crime, with the outfit:

establishing cells in Colombia, Peru and Chile, with additional reports of its sporadic presence in Ecuador, Bolivia and Brazil.

The group expanded by following Venezuelan migration flows, initially remaining under the radar by focusing solely on Venezuelan migrants, as its presence increased at border crossings and in urban areas where they congregate. 

When TdA commenced operations in Chile, the country was unprepared, having never dealt with such transnational criminal activity before. In May 2024, BBC Mundo quoted Chilean prosecutor Mario Carrera, who stated: “There are homicides of a severity we’ve never seen before in the country’s history. I’m referring to dismemberment, torture, and burying people alive.”

Most notably, the group is blamed for the February 2024 kidnapping and killing of Ronald Ojeda, a vocal opponent of Venezuelan strongman Nicholas Maduro, in Chile’s capital, Santiago. The government there has linked the crime to the Venezuelan government, signaling an alliance between Maduro and TdA.

The leader of TdA in Chile and alleged mastermind of Ojeda’s assassination, Rafael “El Turco” Gámez, was arrested for human trafficking in Texas in December, and on March 24, DOJ announced plans to extradite him to Chile where El Turco is wanted for “for extortion, kidnapping resulting in homicide, kidnapping for extortion, unjustified firearm discharge, and criminal association”.

The group’s operations in Colombia are so extensive that in July 2024, President Biden’s State Department placed bounties with a combined value of $12 million on the three leaders of TdA (including Niño Guerrero), part of a joint effort between the FBI and the Colombian National Police. 

Trump warned about the danger the group posed to Americans on the campaign trail, and immediately after taking office asked the State Department to determine whether to designate TdA as a foreign terrorist organization, a process I described in January.

On February 20, the State Department did designate TdA as an FTO, concluding: “This brutal criminal group has conducted kidnappings, extorted businesses, bribed public officials, authorized its members to attack and kill U.S. law enforcement, and assassinated a Venezuelan opposition figure.”

PP 10903 and AEA Removals

Nineteen days later, President Trump issued Presidential Proclamation (PP) 10903, “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua”.

In that PP, the president concluded that TdA “operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela,”, and supports “the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States”. 

Finding TdA “is perpetrating, attempting, and threatening an invasion or predatory incursion against” the United States, he proclaimed, in terms tracking the operative language of the AEA, that: 

all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies. 

Pursuant to that proclamation, those individuals described in the PP are subject to removal—not under the Immigration and Nationality Act (INA) like most removable aliens—but under the AEA itself. 

J.G.G. v. Trump

The AEA has been invoked on three occasions in the past, all during declared wars. This is the first time a president has used it in response to an “invasion or predatory incursion”.

The Trump administration quickly utilized that authority, flying 238 alleged TdA members from detention facilities in Texas to El Salvador on March 15, where those aliens were placed in that country’s Center for the Confinement of Terrorism (CECOT).

That same day, five Venezuelan nationals in DHS custody filed a complaint in the U.S. District Court for the District of Columbia (D.D.C.), under both the AEA and the Administrative Procedure Act (APA), arguing they were “threatened with imminent removal under” PP 10903. That case was assigned to Chief Judge James Boasberg.

It should be noted that none of the named plaintiffs in the case, J.G.G. v. Trump, were on those flights, but nonetheless, late on March 15, Judge Boasberg issued a temporary restraining order (TRO) barring removals under the AEA for 14 days and ordering the government to turn those planes around.

On April 7, the Supreme Court vacated Judge Boasberg’s TROs in J.G.G., with a majority holding that claims by alleged TdA members facing removal under the proclamation could only be brought in habeas proceedings before judges with jurisdiction over their places of detention. None were being held in D.C.

J.A.V. v. Trump

On April 9, two days after the Supreme Court issued that opinion, three aliens allegedly facing removal under PP 10903— identified as “J.A.V.”, “J.G.G.”, and “W.G.H.” — filed a petition for writ of habeas corpus in U.S. District Court for the Southern District of Texas (S.D. Texas), in J.A.V. v. Trump.

That day, the assigned judge, Fernando Rodriguez, issued a TRO in the case, barring DHS from moving those three aliens — “or any other person” the government claims is removable under PP 10903 in S.D. Texas — from El Valle before April 23. That case is currently pending.

A.A.R.P. v. Trump

Which brings me to the Supreme Court’s most recent decision, its 1:00 a.m. pronouncement in A.A.R.P. v. Trump. 

The plaintiffs in that case are two Venezuelan nationals who claim to be facing removal under the AEA, identified by their initials, “A.A.R.P.” and “W.M.M.” 

On April 16, they filed a “Class Petition for Habeas Corpus” on their own behalf and on behalf of a proposed class consisting of all aliens “in custody in the Northern District of Texas who were, are, or will be subject to” PP 10903, with the U.S. District Court for the Northern District of Texas (N. D. Texas).

Note that both are currently in removal proceedings under the INA — meaning they probably aren’t facing imminent removal under PP 10903. Not surprisingly, Judge James Wesley Hendrix of the N.D. Texas denied the duo’s request for a TRO on April 17. 

Judge Hendrix found no reason to conclude the government wouldn’t allow aliens subject to the PP access to judicial review prior to removal under the AEA, as the Supreme Court ordered and the government agreed to in J.A.V., and thus deferred ruling on their request to certify the class.

Not satisfied with that answer, the next day counsel for the pair filed an Emergency Application with the Supreme Court, seeking “a stay of removal and an immediate administrative stay to preserve the status quo for individuals challenging their removal under the” AEA in the N.D. Texas. 

They alleged that proposed members class were “in imminent and ongoing jeopardy of being removed from the United States without notice or an opportunity to be heard”, contrary to the Court’s order in J.G.G. 

Moreover, they contended that many would-be class members “have already been loaded on to buses, presumably headed to the airport”.

In a highly unusual move, and without waiting for the government to respond, the Court issued the following order in response to that Emergency Application: 

The matter is currently pending before the Fifth Circuit. Upon action by the Fifth Circuit, the Solicitor General is invited to file a response to the application before this Court as soon as possible. The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.

Justice Alito Responds

As noted, Justices Alito and Thomas dissented from that order, and later that day Justice Alito explained why.

After listing a number of issues with that order — including but not limited to the fact that it wasn’t clear the Court had jurisdiction or that the plaintiffs had complied with a requirement to seek emergency relief from the district court first, and that the plaintiffs had “provided little concrete support for” their contention that they were “in imminent danger of removal” – he précised his thoughts thusly: 

In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order. 

He concluded by noting: “Both the Executive and the Judiciary have an obligation to follow the law. The Executive must proceed under the terms of our order in [J.G.G.] and this Court should follow established procedures”.

The Alien Enemies Act has been rarely used, and Trump’s basis for invoking it is novel. But, in the rush to protect the due process rights of aliens alleged to be members of TdA, a criminal group wreaking havoc across the Americas, the justices should remember the American people have rights, too — and expectations of their highest court.