The Trump Justice Department has supplemented its request that the Supreme Court allow it to deport dozens of aliens detained in Texas, after a violent incident in which 23 of the detainees barricaded themselves in a prison housing unit for several hours while threatening to take hostages and harm ICE officers.
Three weeks ago, as I detailed here and here, the Court intervened in the wee hours on Saturday morning, without hearing from the Justice Department, due to an emergency application filed by the ACLU, on behalf of a putative class of Venezuelans targeted by President Trump’s Alien Enemy Act (AEA) proclamation. The aliens alleged that the government was poised to deport them at any moment, likely to the notorious Salvadoran prison to which it had deported scores of Venezuelans in mid-March.
The Court, over the dissent of Justice Samuel Alito, who was joined by Justice Clarence Thomas, directed the government “not to remove any member of the putative class of detainees from the United States until further order of the Court.”
Trump DOJ Solicitor General D. John Sauer later contended, as had Justice Alito, that the Court’s intervention was premature. Although this was true, the administration’s brinksmanship in refusing to say whether it was about to conduct deportations, coming on the heels of its furtive deportations in mid-March (when the Justice Department obfuscated when pressed for details by a federal judge) convinced seven justices that the administration should be told to stand down — although the Court also expressly encouraged Sauer to file a brief making any counterarguments (which he did).
The Court has taken no further action on the matter since its April 19 order. In the interim, there have now been two major developments.
The Ruling against Class Certification
First, Judge James Wesley Hendrix, a Trump appointee to the bench in the Northern District of Texas (NDTx), has ruled that the proposed class should not be certified. In a thorough 48-page opinion, Judge Hendrix concluded that the claims of the putative class members were too divergent to warrant class treatment.
The Supreme Court had already unanimously ruled that the aliens may challenge the AEA proclamation’s application to them by filing habeas corpus petitions. Habeas, which involves allegations that a person’s detention or conditions of confinement violate federal law, tends to be an individualized, fact-specific claim. It is unclear whether it can be brought as a class action — the Supreme Court has never resolved that question.
Judge Hendrix determined that he didn’t need to resolve it either; he denied class certification on the narrower rationale that the petitioners had not met the federal requirement that a class be a numerous group raising essentially the same claims. Although all of the aliens may want to challenge the AEA, their AEA claims are not all the same; in addition, they have other non-AEA claims, and these vary from detainee to detainee. Hendrix thus concluded that (a) the aliens didn’t qualify for class certification, and (b) even if they might arguably qualify, he would exercise the district court’s broad discretion to deny class certification.
This bolstered Sauer’s previously posited contention that the aliens did not qualify as a class, and that the Supreme Court, therefore, should not have prematurely intervened on the dubious assumption that they might qualify.
Uprising at the Prison
The second development was the alarming disturbance at the Bluebonnet Detention Facility in the NDTx. As the solicitor general’s brief to the Court reports:
Unsurprisingly, given that the putative class members were detained based on their membership in a designated foreign terrorist organization [i.e., Tren de Aragua (TdA)], they have proven to be especially dangerous to maintain in prolonged detention. Some 23 putative class members recently barricaded themselves in a housing unit for several hours and threatened to take hostages and harm ICE officers.
Sauer elaborated that the prisoners had used bed cots to block the entrance doors, blocked the windows, and covered surveillance cameras. The incident underscores the peril of prolonged detention of likely gang members and violent criminals. Relatedly, it is also a national security issue in that TdA has a demonstrated history of recruiting and indoctrinating incarcerated young men. Hence, keeping them in custody, and even moving some portion of them to other prison facilities, risks increasing the group’s membership and the threat it poses.
The Supreme Court Should Amend Its Order
The government’s main complaint is that the Supreme Court’s order was too broad.
The majority justices barred the government from removing “any member” of the putative class. The ACLU defined the putative class as “all noncitizens in custody in the [NDTx] who were, are, or will be subject to the [president’s AEA proclamation] and/or its implementation.”
As Sauer points out, wholly independent of the AEA, the vast majority of the prisoners at issue are removable under Congress’s immigration laws (codified in Title 8 of the U.S. Code). Indeed, I’ve noted a few times that, for example, the administration’s designation of TdA as a foreign terrorist organization provides a separate basis to remove them, regardless of whether the courts ultimately uphold the AEA invocation. Apart from that, many of the aliens have criminal records or present other circumstances that should qualify them for expedited removal.
Obviously, the Trump administration would like the Court to hold that the president’s AEA invocation is not judicially reviewable. That is, the administration contends that, under constitutional separation of powers principles, the question of whether there has been an invasion or a predatory incursion by an arm of a foreign power is up to the president, not the judiciary, to decide.
Moreover, although the administration has conceded that it will not deport any alien who has filed a habeas petition challenging the AEA, no members of the putative class have filed habeas petitions in the three weeks since the Court intervened (other than the two named petitioners in the case, who were seeking to certify a class). Ergo, the government argues, the aliens have had due process — notice and an opportunity to be heard by filing petitions for relief — and there should be no further barrier against deportation.
I won’t belabor the record with a restatement of the various reasons why I believe the government’s arguments that the AEA is not justiciable will fail. (And beyond that, I think the Supreme Court will let that issue percolate in the lower courts rather than decide it prematurely. As detailed nearly two weeks ago, Judge Francisco Rodrigues Jr., a Trump appointee in the Southern District of Texas, has already ruled that the AEA invocation was invalid.) For present purposes, it is enough to say that, even if the administration is wrong on the AEA, it is right that removals under the normal immigration laws should proceed forthwith.
Sauer makes a fair point that any alien disposed to do so could have filed a habeas petition by now. Nevertheless, the courts may conclude that the aliens were waiting for a ruling on class certification (though Sauer is right that nothing prevented any alien from filing a habeas claim while waiting for the class certification issue to be decided). I don’t believe the Supreme Court will greenlight AEA-based deportations without first indicating that it will permit them unless habeas petitions are filed by some agreed-upon date.
That said, I do expect that the Court will modify its order to clarify that the government is not prohibited from deporting anyone who could properly have been removed under the ordinary operation of the immigration laws.