SCOTUS Permits Trump’s Use of the Alien Enemies Act for Tren de Aragua Removals

On Monday, the Supreme Court issued its opinion in Trump v. J.G.G., vacating two temporary restraining orders (TROs) handed down by lower courts in Washington, D.C., that had blocked the president’s use of the Alien Enemies Act of 1798 (AEA) to detain and quickly deport alleged members of the Venezuelan criminal organization Tren de Aragua to a prison in El Salvador. It’s a rebuke to a Chief Judge James Boasberg of the U.S. District Court for the District of Columbia, who threatened to hold administration officials in contempt, but the justices made clear those aliens can still seek review in Texas, where they are being detained, and must be given sufficient notice to seek that review.

The Road to the President’s Use of the Alien Enemies Act. In the run-up to the 2024 presidential election, then-candidate Donald Trump derided the Biden-Harris administration for the migrant surge that had occurred on its watch, and for the role that crisis played in allowing members of a Venezuelan criminal organization, Tren de Aragua (TdA), to enter and operate in the United States.

As soon as he returned to the White House, now President Trump vowed to pull out all stops to remove those TdA members, issuing an Inauguration Day order directing the secretary of State and other high-ranking officials to begin the process of designating TdA and other groups as “foreign terrorist organizations” and “specially designated global terrorists”.

On February 20, the State Department did designate TdA as an FTO, setting the table for Trump, on March 11, to issue Presidential Proclamation (PP) 10903, “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua”.

As that PP explains:

TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.

TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus. [Emphasis added.]

The highlighted portions of that excerpt are crucial to Trump’s use of the AEA. That act, now codified at 50 U.S.C. § 21 states, in pertinent part:

Whenever … 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.

Overly simplistically, Trump found that the illicit entry of TdA members into this country was part of a Venezuelan-government plan to destabilize the U.S. government and thus constituted an invasion of the United States.

Enter Judge Boasberg. On March 15, 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) in which they argued they were “threatened with imminent removal under” PP 10903.

They claimed that venue for their claims was appropriate in the D.D.C. because: (1) the defendants in the case (Trump and administration officials) “are agencies of the United States or officers of the United States acting in their official capacity”; (2) those defendants “reside in this District”; and (3) “a substantial part of the events or omissions giving rise to the claim occurred in this district”.

The plaintiffs asked to be considered part of a larger class of aliens who “were, are, or will be subject to” that PP “and/or its implementation”.

The case was assigned to Judge Boasberg, chief judge of the D.D.C., and that same day he certified the class and issued a TRO enjoining the administration “from removing members of such class (not otherwise subject to removal) pursuant to the Proclamation for 14 days or until further Order of the Court”.

The Flights to El Salvador. March 15 was a Saturday, and at some point that day — again the day the complaint was filed in J.G.G. and that the judge issued his TRO — two flights carrying alleged TdA members removed under Trump’s PP and the AEA left the United States and landed in El Salvador, where those aliens were placed in a prison.

In response, Judge Boasberg demanded details about the flights and whether those aliens were removed in contravention of his order.

He became even more unhappy when the government asked for more time to respond to his request because they were considering invoking the state-secrets privilege; he issued an order on March 20 demanding information about that purported claim.

The Government’s Arguments in Opposition. I will skip through the ensuing drama and simply note that the government’s opposition to the plaintiffs’ claims in J.G.G. is premised on its contentions that to the extent that the president’s actions under the AEA are subject to judicial review, such review can only be sought in habeas proceedings in the districts where they are being detained — not under the APA before Judge Boasberg or any other judge in the D.D.C. (none of the aliens are detained in Washington, D.C.).

As the government argued in its April 1 opposition to the plaintiffs’ motion for a preliminary injunction:

The existence and availability of a habeas remedy to challenge the alien-enemy determinations at issue here is fatal to Plaintiffs’ APA challenge. By the APA’s terms, it is available only for final agency action “for which there is no other adequate remedy in a court.” … But habeas is an “adequate remedy” through which a Plaintiff can challenge the applicability of the Proclamation to himself, and, thus, whether he may be detained and removed under the Proclamation. Because habeas is adequate to obtain the relief Plaintiffs seek, it displaces any review under the APA.

More fundamental, Plaintiffs’ attempt to challenge the President’s Proclamation via the APA fails out of the gate. … The President is not an agency, and his actions are not subject to APA review. … But the AEA vests authority in the President, and the President issued the Proclamation. There is therefore no avenue under the APA for Plaintiffs to enjoin the Proclamation. [Emphasis and link added; citations omitted.]

Habeas corpus is Latin for “you have the body”, and as the U.S. courts website explains, a writ of habeas corpus issued by a court is “generally is a judicial order forcing law enforcement authorities to produce a prisoner they are holding, and to justify the prisoner’s continued confinement”.

At the urging of the district court, however, the plaintiffs dropped their habeas claims, and I’ll note that they aren’t challenging their detentions so much as they are seeking an order declaring Trump’s use of the AEA to remove them unlawful.

But as the government stated in its opposition:

the line between detention and removal in the AEA context is a distinction without a difference. Under the Proclamation, detention is the immediate precursor to removal. … And both involve exercise of custodial authority under the AEA, which Plaintiffs’ claims here argument is unlawful — a quintessential habeas claim. [Citations omitted.]

J.G.G.’s Path to the Supreme Court. On March 24, Judge Boasberg denied the government’s motion to vacate his orders, which prompted the government to head to the U.S. Court of Appeals for the District of Columbia (USDC) seeking a stay of the two TROs in this case: one preventing the government from deporting the five named plaintiffs for 14 days, and the other from deporting other aliens in the class under the PP for the same period.

On March 26, a three-judge panel of the USDC issued an order per curiam (for the whole panel) denying the government’s emergency stay requests in a two-to-one decision, with each judge writing separately.

In dissent, circuit Judge Justin Walker concluded Judge Boasberg’s orders were appealable as they “affirmatively interfered with an ongoing, partially overseas, national-security operation”, but more importantly concluded the government was likely to succeed because the challenge could only properly be brought in habeas proceedings filed in Texas, where they were being held, and not under the APA in the D.D.C.

In response, on March 28, DOJ filed an application with the Supreme Court to vacate Judge Boasberg’s orders, again arguing (among other things) that judicial review of Trump’s AEA actions was limited to habeas petitions filed in their places of detention.

The plaintiffs opposed the government’s application to the justices, asserting (again, among other things) that TROs aren’t appealable orders and also that the government was wrong in asserting that their claims could only be brought through habeas petitions in Texas.

The Justices’ April 7 Per Curiam Opinion. As noted at the outset, the Supreme Court issued its opinion (late) on April 7, vacating Judge Boasberg’s March 15 minute orders granting a TRO to the plaintiff and the class, as well as an extension of those orders issued by the USDC on March 28.

The opinion was five-to-four, with the Chief justice joined by Justices Thomas, Alito, and Gorsuch on the per curiam opinion, Justice Kavanaugh concurring, and Justices Kagan, Sotomayor, and Jackson in a dissent that Justice Barrett (a Trump appointee) joined in part.

The majority agreed with the government’s argument that review of the administration’s AEA actions was appropriate only in habeas in the venue in which they are being detained, meaning that venue in D.C. was “improper”.

As Justice Kavanaugh noted in his concurrence, “all nine Members of the Court agree that judicial review” of their “transfers” out of the United States “is available” to the detainees subject to the PP, even under the limits on review in the AEA.

“The only question is where that judicial review should occur.” The Court’s answer is in habeas proceedings, in Texas.

For those concerned that the Trump administration is simply going to bundle up every Venezuelan it can find, label them TdA, and rush them out of the country, the majority has a response:

AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

For all the folderol in this case, the Court’s answer is simple: Alleged TdA members subject to removal under the Alien Enemies Act can receive judicial review; they just have to seek that review in Texas, where they are being held pending deportation, not in the churning legal caldron of Washington, D.C.

Trust me, there will be more to follow.