SCOTUS Enjoins Alien Enemies Act Removals

On May 16, the Supreme Court issued an injunction in A.A.R.P. v. Trump, blocking the removal under the Alien Enemies Act (AEA) of a putative class of Venezuelan nationals in the Northern District of Texas who are alleged to be members of Tren de Aragua (TdA). The case at this early stage comes down to a fairly simple question: How much notice is due to an alien who is subject to removal under that act? The justices would likely prefer not to answer any AEA questions, however.

In analyzing AEA cases in the recent past, I’ve almost uniformly provided a history of that act, described the genesis of TdA (a criminal organization that got its start in a Venezuelan prison), explained the basis of the administration’s reasoning for removing members of TdA under that act, and gone fairly deep into the history of the specific case.

All are salient points, but to the degree they aren’t becoming redundant, legal precedent doesn’t offer a lot of landmarks to explain what a majority of the justices did on May 16, as the dissent — authored by Justice Alito and joined by Justice Thomas — makes clear.

The Questions

Suffice it to say that the AEA has been law since 1798, and in that period presidents have only invoked it three times — during the War of 1812, World War I, and World War II — and in each instance did so to remove alien enemies during a declared war (or while a declared war had not reached a final resolution, even if the shooting had stopped).

This is the first time a president has attempted to remove aliens under the AEA in response to an “invasion or predatory incursion”, which has any number of legal implications.

The AEA by its terms permits the removal of enemy aliens in response to an “invasion or predatory incursion”, but that language raises the question of whether such events have transpired and to what extent aliens can challenge the executive’s finding that they have transpired.

Such determinations are closely tied to two core presidential powers: the foreign affairs power, under which the president is the chief diplomat of the United States, and the war power, which flows from the president’s role as commander in chief.

Courts generally defer to the executive when he exercises either of those powers, both because judges lack competence to second-guess the president on such issues and because the Constitution pretty clearly gives the president a lot of leeway with respect to those powers (though Congress retains the sole authority to declare war).

But courts can only consider “cases and controversies” under our constitutional order, which means they lack the power to issue “advisory opinions” on the legality of any executive action.

Consequently, the president could not have asked the Supreme Court in advance (even if he wanted to, and he likely didn’t) to weigh in on whether TdA has engaged in an invasion or predatory incursion of this country, or on the evidence necessary to establish that a given alien is an “alien enemy” such that the alien could be removed under the AEA.

Such questions can only be answered (if at all) through the judicial process, which means they’ll only be answered once aliens file suit to prevent removal under the AEA, lower courts rule, and those decisions make their way back to the justices.

At this point, the justices have answered at least one preliminary question, holding that aliens can only challenge removal under the AEA in habeas proceedings — not any judicial review procedure.

The next question, then, is how much advance notice must aliens receive that the government plans to remove them under the AEA so they can seek habeas relief?

The government — logically — prefers as little time as possible, not only because (as per the government) TdA poses a unique threat to the United States but also because it wants such proceedings to be done as quickly as possible.

Conversely, the aliens would prefer as much advance notice as possible, not only to put together the best possible challenge to removal but also more basically because — as the Court noted 33 years ago in a different context — “as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States”.

Justice Kavanaugh, in a concurrence from the unsigned, per curiam, opinion, would prefer the Supreme Court just keep the case and rule on two key questions: “(i) whether the [AEA] (as distinct from the ordinary removal process under the Immigration and Nationality Act [INA]) authorizes removal of these detainees and (ii) if so, what notice is due before removal”?

While perhaps efficacious, that appears to have been a bridge too far for the remaining six justices in a majority that (in the opinion of Justices Alito and Thomas) was willing to cut plenty of other corners to issue the opinion they did.

The Justices’ Druthers

Instead, the majority remanded the case to the U.S. Court of Appeals for the Fifth Circuit, which has jurisdiction over not only the Northern District of Texas where these aliens are being detained but also the other judicial districts in which the other aliens the government is seeking to remove under the AEA are being detained.

Not that the Fifth Circuit will likely have the final word, because the majority also ruled that its injunction would remain in effect “pending order by the Fifth Circuit and disposition of” any petition for Supreme Court review from that decision.

The majority would likely prefer the government to deport these aliens under the INA, where the rules are much better established.

Why do I think that? Because the last line in the majority’s opinion states, “The Government may remove the named plaintiffs or putative class members under other lawful authorities,” and in that context the INA is the only remaining “lawful authority” for removal.

Granted, the government asked the Court, “at a minimum”, to clarify that question in its favor in its opposition to the applicants’ injunction request, but it’s apparent from the opinion as a whole that the majority wants nothing to do with this politically charged issue.

If the majority had its druthers, it would probably prefer the administration try to deport Venezuelan nationals it alleges are TdA members under the INA. That’s not how this president is rolling, however, so the Court should probably cancel its summer plans.