Fresh on the heels of a high court ruling giving the Trump administration the green light to continue deportations to a Salvadoran prison, two judges — one in New York and another in Texas — again temporarily blocked the Justice Department from using the Alien Enemies Act for such removals.
The ink was barely dry on the Supreme Court’s ruling allowing the Trump administration to continue efforts to swiftly deport Venezuelan immigrants to a brutal prison in El Salvador when the American Civil Liberties Union filed the lawsuit that was the subject of the New York order. Another new challenge in Texas involving the same detained immigrants who were the subject of the Supreme Court ruling was also quickly filed.
The challenges seek not only to form a class action for those being held throughout the United States under the Trump administration’s order but also argue that the wartime law that the administration is relying on does not authorize such deportations, and that the Venezuelan nationals are still being denied due process, in defiance of the Supreme Court’s order. The complaint, in my view, states a strong case.
The administration claims that the Alien Enemies Act, a law passed in 1798 that gives the president expanded powers to detain or expel foreign “enemy” nationals, empowered President Trump to sign an order directing the swift deportation of members of the Venezuelan gang Tren de Aragua.
But, the immigrants’ attorneys argue, even if the detained immigrants were members of the TdA — a claim they deny — the law does not give Trump the powers he thinks it does.
First, the complaints allege, the law is directed at members of foreign nations, not organized crime rings. The Venezuelan gang is not a nation, nor is it sponsored by the Venezuelan government.
Further, the New York lawsuit claims, even if the gang was controlled by the Venezuelan government, the United States is not at war with Venezuela, so the act would still be inapplicable.
But the threat the order poses to immigrants who have already been or may soon be detained — identified by questionable means — is urgent, the complaint alleges.
“[T]he government employs a standardized check list, ‘Alien Enemy Validation Guide,’ to determine who is an ‘alien enemy’ subject to the Proclamation,” the New York complaint states. The “Proclamation” refers to the executive order authorizing the detentions under the wartime law.
“An ICE officer completes the form, tallying points for different categories of alleged TdA membership characteristics,” according to the complaint. “However, the methodology that Respondents employs for TdA membership relies heavily on physical attributes like tattoos, hand gestures, symbols, logos, graffiti, and manner of dress. Experts who study the TdA have explained how none of these physical attributes are reliable ways of identifying gang members.”
And despite the Supreme Court’s ruling underscoring that all people who have been detained are entitled to due process, which includes proper notice and judicial review, they are not getting it, the ACLU attorneys said.
“[T]here is no process, notice or meaningful opportunity for individuals to challenge their designation as alien enemies,” the complaint states.
These cases are likely to make their way to the Supreme Court, where they would join a flurry of emergency petitions that are before the justices — including one that could determine the fate of Kilmar Abrego Garcia, the Maryland man who the Justice Department has admitted was mistakenly deported. While considering whether to weigh in on the case, the justices temporarily halted a lower court judge’s order directing the administration to immediately return Abrego Garcia to the United States. The Justice Department is appealing that order.
That means the Supreme Court’s docket will be busier than usual as it moves into the home stretch of its term, which traditionally wraps up by the end of June. Most of the most-watched cases, including those involving religious liberty claims, challenges to state bans on gender-affirming care, and gerrymandering claims, are still pending. There are also several cases still awaiting oral arguments later this month. Buckle up.
This is an excerpt from The Gavel, a newsletter about the Supreme Court from columnist Kimberly Atkins Stohr. Sign up to get The Gavel in your inbox every Thursday afternoon.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com.