It’s tough to square the DOJ’s concession that Venezuelan aliens are entitled to judicial review with its position that no notice is needed before deportation.

A three-judge federal appellate panel appeared skeptical about the Trump Justice Department’s defense of the president’s deportation of over 200 Venezuelan nationals on March 15. The D.C. Circuit panel was hearing oral argument on the Trump administration’s appeal of a temporary restraining order issued by Chief Judge James Boasberg of the federal district court in Washington, D.C., which has halted the deportations. (The argument, which was streamed live, is available on the circuit’s website.)

The appeals court seemed doubtful because the administration’s position is almost incomprehensible.

Grudgingly — and I mean through gritted teeth and straining mightily not to make a firm concession — DOJ attorney Drew Ensign acknowledges that Venezuelan aliens are entitled to judicial review on the question of whether they fit the category of instantly deportable alien described in President Trump’s proclamation invoking the Alien Enemy Act (see Title 50, U.S. Code, §21). Essentially, that means the aliens are individually entitled to contest the administration’s allegation that they are members of Tren de Aragua, the Venezuelan gang that has close ties to the Maduro regime and that the administration has designated as a foreign terrorist organization.

Nevertheless, Ensign refused to concede that the aliens are entitled to notice that the administration deems them covered by the proclamation prior to being deported (to a prison in El Salvador or elsewhere overseas).

When the right to due process is triggered, the minimal black-letter legal requirement is that the person be given both notice and an opportunity to be heard. The reason for requiring notice is obvious: without it, the government could take decisive action that would render illusory the opportunity to be heard. I wouldn’t want to risk saying it’s never happened before, but I must say that in two decades as a prosecutor I never heard of the Justice Department taking the position that a person had a right to be heard regarding some government allegation but that the government had no obligation to provide notice of the allegation.

If one is not given notice of an allegation against oneself, why would one even think to go to court and contest the allegation, let alone go to the trouble of filing a habeas corpus petition or some similar pleading?

Initially, the Trump DOJ seemed to be suggesting that there was no opportunity to be heard in opposition to deportation under the AEA. That position, however, is untenable because of the Supreme Court’s 1948 decision in Ludecke v. Watkins. Writing for the Court, Justice Felix Frankfurter observed that the “resort to the courts” is permitted under the AEA to challenge “the construction and validity of” the AEA and, assuming the statute has been triggered due to a congressional declaration of war, to challenge “the existence of the ‘declared war.’” (The narrow question in Ludecke was whether World War II was still a declared war in 1946 when President Truman invoked the AEA, despite the defeat of our enemies in 1945. The Court held that it was because Truman found that it was still ongoing and Congress had not taken action to end its declaration of war.)

Significantly for present purposes, Justice Frankfurter added a footnote (No. 17) to that passage. It states: “The additional question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may also be reviewed by the courts” (emphasis added). The Court incorporated in footnote No. 17 its earlier footnote No. 8, which cited cases supporting judicial review.

Ludecke thus stands for the proposition that aliens against whom the AEA is invoked are entitled to their day in court. This is further supported by the text of the AEA itself, which includes:

The President is authorized . . . by his proclamation [of AEA measures, including deportation] . . . to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable.

This at least implies that the government is expected to conduct itself in a manner consistent with due process when dealing with people who have become liable due to an allegation the government is making (namely, that they are nationals of a hostile power that is either in a declared war with the United States, has invaded our country, or is executing a predatory incursion on our territory). Due process is nothing more than the process that is due under the circumstances; it need not be elaborate in all situations — the process due for the accused in a criminal trial, for example, is much more exacting than the process due in a deportation proceeding for an illegal alien who has no right to be present in our country. But, to repeat, due process minimally mandates notice and an opportunity to be heard. The Justice Department’s “no notice” position is, to my mind, impossible to square with its admission that the Venezuelans have a right to be heard in court.

I commend to readers Ed Whelan’s excellent Bench Memos post summarizing the “meticulous” (as Ed aptly puts it) 37-page opinion that Chief Judge James Boasberg issued this morning, denying the administration’s request that he vacate the TRO. Between that opinion and today’s oral argument before the circuit panel, we can conclude, at least for now, that the ground has shifted in the controversy — away from the AEA and toward due process.

This is because, as I tried to explain in a piece earlier today, the AEA raises significant separation-of-powers issues. That is, it’s not just a question of whether, objectively speaking, an invasion or a predatory incursion has taken place; it’s a question of who decides — the president, who is constitutionally responsible for national security and foreign relations, or a court that has no such responsibilities and is acting at the behest of petitioners the president has concluded are hostile foreign operatives.

It is easy enough to argue (as I have done) that Congress intended the AEA to apply only when Congress had declared war or when warlike circumstances (invasion or predatory incursion by a foreign power) abruptly arose before Congress had time to convene and when it was vital for the president to act in the nation’s defense. That, however, provokes a related question: When Congress enacted the AEA in 1798, did anyone understand that an unelected federal judge had the authority to countermand the determinations the president had made under the statute?

That seems implausible to me — even though judicial review is a matter of routine today — because the principle of judicial review (of the constitutionality of acts of Congress) was not established until five years later in Marbury v. Madison (1803), and was very sparingly resorted to for decades thereafter. When the AEA was enacted, our constitutional republic was barely a decade old and was trying to survive amid threatening foreign powers that still held territory in North America. The notion that a federal judge would have overruled Presidents George Washington, John Adams, or Thomas Jefferson on an AEA determination seems highly unlikely.

Hence, even if you think, as I do, that President Trump’s invocation of the AEA was unwise and probably unsupported by the facts, it is still a leap to say a judge has the power to invalidate his proclamation.

On the other hand, the due process question is not difficult. It allows the court to assume for argument’s sake that the president has the power he has claimed and simply proceed to the question of whether the government can establish, by some quantum of evidence, whether the aliens facing deportation — either retrospectively or prospectively — are members of TdA.

I believe the D.C. Circuit is likely to uphold Judge Boasberg’s TRO and will rule that the Venezuelan aliens are entitled to notice and an opportunity to contest the administration’s designation of them as alien enemies as further described in President Trump’s proclamation.

Whether the federal courts have jurisdiction to compel the government to return to the United States Venezuelan aliens who have been transferred to the custody (and, presumably, the control) of the government of El Salvador, is a separate, knottier question. And of course, all these questions are probably headed to the Supreme Court.