It appears Trump’s deportations of Venezuelans to El Salvador were poised to restart. At issue is what due process requires.
The Supreme Court acted Friday night to block the Trump administration from deporting Venezuelan aliens held in Texas whom the administration claims are members of Tren de Aragua (TdA) and, hence, argues are removable under the president’s Alien Enemies Act (AEA) proclamation.
Justices Clarence Thomas and Samuel Alito dissented from the Court’s one-paragraph order. The Court indicated that Justice Alito is writing on the matter and we can expect him to issue an opinion shortly. Pending that, it is not clear to me whether the two justices are dissenting because they believe that the Court’s intervention is premature, that the Court may lack jurisdiction, that the aliens have no meritorious objection to removal under the AEA, or some other rationale.
Things are moving fast, but here is the background.
In the last few days, the government has begun transferring at least dozens of Venezuelan aliens, if not over a hundred, to the Bluebonnet detention center in Anson, Texas — the Northern District of Texas (NDTx). The aliens are all in custody based on allegations that they are illegally in the United States. They have not yet, however, been found removable by the Justice Department’s immigration courts.
Upon arrival in the NDTx detention center, the ACLU says, the aliens were given notices in English that the government had determined they were members of TdA and were subject to deportation under President Trump’s March 15 proclamation, which invoked the AEA. The proclamation asserts that TdA is a de facto component of Nicolas Maduro’s rogue regime in Venezuela and has carried out an “invasion” of and “predatory incursion” in the United States.
As we have extensively covered, the AEA (now codified at Section 21 of Title 50, U.S. Code) is a 1798 statute that empowers the government, in wartime conditions, to detain and deport aliens. The aliens must either be nationals of the enemy foreign power in a war declared by Congress, or be part of a foreign power that has invaded, or conducted a predatory incursion in, the United States. Prior to the Trump proclamation regarding TdA, the AEA had only been invoked three times in American history, all in connection with congressionally declared wars — the War of 1812, World War I, and World War II.
The ACLU brought an emergency habeas corpus lawsuit in the NDTx on behalf of two of the aliens in NDTx detention, seeking a temporary restraining order (TRO) against their deportation and asking the federal district court to certify as a class all Venezuelan aliens in the district who have been advised that they are subject to deportation under the proclamation, or are likely to be so advised.
The case was assigned to Judge James Wesley Hendrix, a Trump appointee. On Thursday, Judge Hendrix denied the TRO application, reasoning that the government had represented to the ACLU that it would not imminently deport the two aliens named in the lawsuit.
Nevertheless, according to the ACLU, at around 9 p.m. on Thursday night, the Trump administration refused to provide the ACLU any assurance regarding other members of the proposed class. The ACLU represents that, after Judge Hendrix denied the TRO on Thursday, dozens of Venezuelan aliens (males who had recently been moved to the Bluebonnet facility from detention centers in Minnesota, California, Louisiana, and elsewhere around the country) were given notices invoking the AEA and designating them as TdA members. The aliens were advised that their deportation would happen within the next 24 hours.
The ACLU then filed another emergency motion at about 1 a.m. on Friday, providing Hendrix with this new information, again seeking a TRO, and asking for an immediate status conference at which the government would be required to inform the court of its intentions. When, after a few hours elapsed with no response from Hendrix, the ACLU appealed to the Fifth Circuit, arguing that Hendrix, by his inaction, had constructively denied their application.
Hendrix explains that he has been working diligently on the emergency application while simultaneously presiding over a criminal trial; that he’d put in safeguards he believed were adequate; and that moving any faster in a complex case would have been unreasonable, especially given the eruption of activity on “Good Friday, an important day of observation for many.” In any event, as he concluded, the appeal deprived him of any further jurisdiction to act.
Meantime, the ACLU also filed an emergency application in the Supreme Court, asking the Court to block the government from deporting the aliens while their Fifth Circuit appeal is pending.
That is the application the justices granted, 7-2. The Court’s unsigned order stated: “The Government is directed not to remove any member of the putative class of detainees from the United States until further Order of this Court.” The majority justices elaborated that the putative class’s application for an injunction against their removal under the AEA is currently before the Fifth Circuit, and that the Trump Justice Department’s “Solicitor General is invited to file a response to the application before this Court as soon as possible.”
Again, there are lots of moving parts and they are moving quickly, but here’s what I surmise.
The Trump administration is attempting to miniaturize the Supreme Court’s ruling less than two weeks ago that the Venezuelan aliens are entitled to due process of law, under habeas corpus proceedings in the district where they are detained, to challenge their AEA designation — i.e., to force the government to establish that they are, in fact, members of TdA, and that the president has properly invoked the AEA.
The administration initially moved many of the Venezuelan aliens to the Southern District of Texas (SDTx). After the Supreme Court vacated the TRO issued by Judge James Boasberg in Washington, D.C. — on the ground that the aliens’ challenge had to be under habeas corpus in SDTx, rather than under the Administrative Procedure Act in the District of Columbia — the administration anticipated quickly deporting the aliens detained in SDTx.
This plan was foiled when, two days after the Supreme Court’s April 7 ruling, Judge Fernando Rodriguez Jr., a Trump appointee to the SDTx court, issued a restraining order very similar to Judge Boasberg’s now-vacated TRO, except that it properly covered only Judge Rodriguez’s own district, not all Venezuelans across the country who were potentially implicated by the AEA proclamation. The order prohibited the Trump administration from deporting any aliens in the SDTx until the aliens had a meaningful opportunity to challenge deportation under habeas corpus. (As I’ve previously noted, Judge Alvin Hellerstein issued a similar TRO in the Southern District of New York, where two Venezuelan aliens are detained.)
It now appears that, following Rodriguez’s action in the SDTx, the administration began planning, instead, to deport the aliens from the NDTx, which is not covered by Rodriguez’s TRO.
In almost a mirror image of what was done a month ago, when approximately 137 AEA-designated Venezuelans were among approximately 261 aliens deported to El Salvador, the administration planned to get the aliens into the NDTx and, within a day or two, load them onto aircraft and deport them — capitalizing on Good Friday and the weekend of Easter when, as Judge Hendrix noted, many Americans, including court personnel, take time from work and devote their attention to higher things.
Here is the heart of the controversy. In its ruling on April 7, the Supreme Court asserted:
The Fifth Amendment requires the Government to afford plaintiffs “notice after the date of this order that they are subject to removal under the Act, . . . within reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
The justices did not say what form and substance the notice had to take. The Trump administration’s position is that it can hand incarcerated aliens who do not have ready access to counsel curt notices that they have been designated under the AEA and are about to be deported — say, on Holy Thursday, right before the Easter weekend — and then deport them by Saturday.
This is illusory notice. Furthermore, there is good reason to believe the president has not properly invoked the AEA — we are not at war; while TdA is a vicious criminal organization, it is not a foreign power (though the administration claims it is an arm of the Maduro regime), and it has not conducted an invasion or predatory incursion as those terms were understood when the AEA was adopted. There is, in addition, Supreme Court precedent — Ludecke v. Watkins(1948) — for the proposition that courts have authority to determine whether the predicates for the AEA have been met. Moreover, on the few occasions when the AEA has been invoked in American history, aliens were given meaningful opportunities to challenge their designation under a presidential AEA proclamation, and given a reasonable period of time to self-deport.
As I discuss in greater detail in the weekend column, the Trump administration takes the position that, because the Biden administration lawlessly flooded the country with millions of illegal aliens, and because President Trump believes he has an electoral mandate to deal with the crisis that has ensued, the administration cannot be expected to adhere to due process requirements. One needn’t be indifferent to the security and societal concerns caused by Biden’s disastrous policies to grasp that the Trump administration’s position is untenable.
Nevertheless, consistent with its position that no due process should be required, the Trump administration obviously believes the bare minimum of notice it has given to the Venezuelans at issue should suffice.
The Supreme Court’s order effectively says it does not suffice: The aliens must not be deported until the Supreme Court weighs in following the Fifth Circuit’s ruling on the aliens’ application for a TRO — which itself seeks an injunction barring deportation until meaningful habeas corpus challenges can be litigated.