Trump asks justices to intervene on Alien Enemies Act removals

This article was updated on March 28.

The Trump administration came to the Supreme Court on Friday morning, asking the justices to allow it to enforce an executive order that directs government officials to quickly remove, without a hearing, noncitizens who are designated as members of a Venezuelan gang. The order relies on a 1798 law that until now has only been invoked during wartime.

Earlier this month, Chief U.S. District Judge James Boasberg barred the federal government from removing any of the alleged members of the gang, or anyone else, under the Alien Enemies Act.  

In 40-page filing, Acting Solicitor General Sarah Harris told the justices that the dispute “presents fundamental questions about who decides how to conduct sensitive national-security operations in this country — the President, through Article II” of the Constitution, “or the Judiciary,” through temporary restraining orders. “The Constitution,” Harris wrote, “supplies a clear answer: the President. The republic cannot afford a different choice.”

The White House issued the executive order on March 15. It targets Tren de Aragua, a large Venezuelan gang that originated in the country’s prisons and then expanded into other parts of Latin America, where it has been responsible for sex trafficking, drugs, and human smuggling. The gang extended its presence to the United States, prompting then-candidate Donald Trump to falsely contend during a 2024 presidential debate that the gang had taken over the city of Aurora, Colo., outside Denver.

The 18th -century Alien Enemies Act allows the president to detain or deport citizens of an enemy nation without a hearing or any other judicial review when Congress has declared war or when an “invasion” or “predatory incursion” takes place. It was invoked during the War of 1812, World War I, and World War II.

In his executive order, Trump found that Tren de Aragua – which Secretary of State Marco Rubio designated as a “foreign terrorist organization” in February – “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” Based on that conclusion, he indicated that “all Venezuelan citizens 14 years of age or older who are members of TdA are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”

Five Venezuelan nationals in immigration custody who feared they would be removed went to federal court in Washington, D.C., to challenge Trump’s use of the Alien Enemies Act and seeking to stave off their removals.

Boasberg barred the federal government from removing any of the individual plaintiffs for 14 days. Later the same day, he prohibited the government from removing anyone under the Alien Enemies Act; during a hearing, he also ordered any flights that had already taken off to remove noncitizens under the law to return to the United States.

Since Boasberg’s initial hearing on March 15, there have been ongoing proceedings in his court relating to the government’s compliance with his orders. The individual plaintiffs named in the case remain in detention in the United States, but news reports indicated that more than 200 noncitizens were removed to El Salvador on Saturday night and Sunday morning. None of the planes carrying those noncitizens landed in El Salvador before Boasberg issued his written order.

The U.S. Court of Appeals for the District of Columbia Circuit fast-tracked the government’s appeal, hearing argument on March 24 and rejecting the government’s request to put Boasberg’s orders on hold two days later, by a vote of 2-1.

Boasberg’s orders, the Trump administration contended “now jeopardize sensitive diplomatic negotiations and delicate national-security operations, which were designed to extirpate TdA’s presence in our country before it gains a greater foothold.”

The divided ruling by the D.C. Circuit, the Trump administration continued, also “cries out for” the justices to step in. The Supreme Court “has held that detentions and removals under the Alien Enemies Act are so bound up with national-security judgments” that courts generally can not weigh in at all, except through some habeas corpus claims – that is, an action to be brought before a court to determine the legality of an individual’s detention. But the D.C. Circuit did not decide whether the plaintiffs in this case should have instead filed a habeas lawsuit in Texas, where they are being held.

Boasberg was also wrong when he granted relief to a nationwide class, made up of anyone in the custody of the federal government who might be subject to Trump’s order, Harris wrote. Among other things, she argued, there are too many differences among the members of the class: Trump’s order applies only to people who are members of TdA, but the individuals named in the complaint in this case contend that they are not members of the group. A majority of the D.C. Circuit, Harris added, “did not reach these objections, even though the government raised them below.”  

Moreover, Harris continued, the lower courts did not consider whether Trump’s order itself is legal – which, she insisted, it is. Trump, she wrote, found “that TdA is both tied to the Maduro regime and itself has gained control over parts of Venezuelan territory,” and “that it has engaged in an ‘invasion’ or ‘predatory incursion’ into our country.” “As a majority of the D.C. Circuit agreed,” she emphasized, “those findings — if reviewable at all — receive the requisite deference due the President’s national security judgments.”

Harris repeated her plea, made in earlier filings, for the Supreme Court to intervene to stop what she characterized as “rule-by-TRO from further upending the separation of powers.” In this case, she complained, “the district court’s orders have rebuffed the President’s judgment as to how to protect the Nation against foreign terrorist organizations and risk debilitating effects for delicate foreign negotiations. More broadly, rule-by-TRO has become so commonplace among district courts that the Executive Branch’s basic functions are in peril.” Since the inauguration of President Donald Trump on Jan. 20, she noted, district courts “have issued more than 40 injunctions or TROs against the Executive Branch.”

Harris also asked the justices to issue an administrative stay – that is, a temporary order blocking Boasberg’s orders to give the Supreme Court time to consider her emergency appeal.

Chief Justice John Roberts on Friday instructed lawyers for the plaintiffs to file their response by 10 a.m. on Tuesday, April 1. 

This article was originally published at Howe on the Court.