Here We Go (Again): Federal Judges Block AEA Deportations After SCOTUS Intervention

This proves once again that Supreme Court decisions require careful reading rather than broad assumptions. Federal judges in both Texas and California read the per curiam order issued late Monday in challenges to deportations of alleged Tren de Aragua organized-crime members — and issued separate stays today. 

The first came in New York:

A federal judge in Manhattan on Wednesday temporarily blocked the deportation of any purported Venezuelan gang member detained in the Southern District of New York without them first receiving notice and an opportunity for a hearing.

U.S. District Judge Alvin Hellerstein suggested his decision was meant to define the parameters set by Monday’s U.S. Supreme Court opinion that allowed the Trump administration to remove Tren de Aragua gang members under the Alien Enemies Act — but not without due process.

That involves only two detainees, who just got returned to New York after being held in Texas. That’s where another judge in Texas followed suit shortly afterward, which may be more problematic for the Trump administration:

In Texas, U.S. District Judge Fernando Rodriguez Jr., a Trump appointee, issued a temporary restraining order preventing the Trump administration from removing those migrants subject to President Trump’s proclamation invoking the wartime law from a detention facility in Texas.

His order will remain in place through April 23, or until he issues a subsequent order. A hearing by videoconference has been scheduled to take place Friday.

What gives? Have these judges gone rogue on SCOTUS? Not at all; these judges read their order carefully, and saw what I had warned about yesterday. The order punted entirely on the Alien Enemies Act (AEA), and only reversed Judge James Boasberg’s TRO on the basis of venue/jurisdiction. It also emphasized that even AEA detainees have the right to a habeas hearing, a point which the Trump administration conceded during the appeals process.

And so both judges have now issued their own stays on deportations, at least for enough of a period for those habeas petitions to be filed. Rather than adopt Judge Boasberg’s national-injunction approach, both judges limited the jurisdiction of their rulings to their district, although both also enjoined the government from moving detainees in their jurisdictions elsewhere. Judge Rodriguez works in the Southern District of Texas, where a significant number of these detainees likely are being housed. In letter, if not perhaps in spirit, both judges acted within the parameters laid out by the Supreme Court.

The habeas challenges will force the government to present evidence of TdA activity for each defendant, but that will likely not be the sole point of challenge for detainees in these proceedings. In both courts, the federal courts could well decide that the AEA cannot apply during peacetime, even under Donald Trump’s declaration that TdA made a planned hostile incursion in concert with the hostile regime of Nicolas Maduro in Venezuela. The Supreme Court explicitly stepped around the AEA application, leaving that to district courts to weigh against the statute (50 USC 21, emphasis mine):

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. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

Is reversal a likely outcome? Perhaps not, but as I also warned yesterday, it’s still possible, especially if judges are unhappy with the administration’s rush to deport earlier detainees. The clause highlighted above with its “or” conjunction should make clear that a declaration of war is not a prerequisite to the authority to enforce the Alien Enemies Act. The rush of TdA organized-crime figures into the US over the last four years is clearly a “predatory incursion,” and Congress gave the president the authority to expel those who participated such an incursion. 

Still, that’s my opinion and my reading of the statute. Federal judges have an annoying habit of reaching their own conclusions on such matters, and this week’s order from the Supreme Court does nothing to prevent a different conclusion. We can safely predict that federal judges will reach a variety of conclusions in these cases — and that the Supreme Court will have to actually address the use of the AEA in the relatively near future.