The Volokh Conspiracy
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Federal Court Rules Migrants Have Right to Hearing to Challenge Alien Enemies Act Deportations
Judge Boasberg ruled the migrants are entitled to due process in determing whether they really are "alien enemies" covered by the Act.
Yesterday, US district Judge James Boasberg ruled that migrants have a right to a hearing to challenge their deportation under the Alien Enemies Act of 1798. The Alien Enemies Act is one of the notorious Alien and Sedition Acts of 1798, the only one still in force. Trump is trying to use it to deport alleged members of Tren de Aragua, a Venezuelan drug gang. But the Act can only be used in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." As explained in my earlier writings about this issue, illegal migration and cross-border drug smuggling do not qualify as an "invasion" or "predatory incursion." Even if they did, they aren't being perpetrated by a "foreign nation or government." Tren de Aragua is a criminal organization, but it is pretty obviously not a "nation or government."
Much of the debate over Trump's invocation of the AEA focuses on whether he can use it all, given the absence of the requisite war, invasion, or predatory incursion. But Judge Boasberg chose not to address that issue (at least not yet), and instead focused on a different point.
The Court need not resolve the thorny question of whether the judiciary has the authority to assess this claim in the first place. That is because Plaintiffs are likely to succeed on another equally fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all. As the Government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, "alien enemies." And the Supreme Court and this Circuit have long maintained that federal courts are equipped to adjudicate that question when individuals threatened with detention and removal challenge their designation as such. Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge. Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.
Judge Boasberg cites extensive precedent showing that noncitizens targeted for detention or deportation under the AEA are entitled to a hearing to determine if they really are "enemy aliens" as defined by the statute and the presidential proclamation invoking it. That was true in every previous use of the AEA (always during actual declared wars: the War of 1812, World War I, and World War II). For example, in United States ex rel. Schwarzkopf v. Uhl, 137 F.2d 898 (2d Cir. 1943), a detainee was able to show he was not actually a German citizen, and thus could not be detained under the AEA as an alien enemy.
Georgetown law Prof. Steve Vladeck covers a variety of similar precedents going all the way back to the War of 1812 in a 2007 article.
I would add that this isn't just a statutory right, but also one required by the Due Process Clause of the Fifth Amendment. At the very least, such due process is surely required in a case where the migrants aren't simply being deported, but are instead incarcerated in a horrific El Salvadoran prison.
The need for due process here is more than just a matter of abstract legal theory. Evidence increasingly indicates that many of the people deported under the AEA by Trump are not members of Tren de Aragua at all, and haven't committed any crimes. The government actually admits that "many" of the deportees do not have any criminal record at all.
While Judge Boasberg chose not to resolve the issue of whether the AEA can be invoked at this time at all, he notes that "this Court is confident that it can — and therefore must, at the appropriate time — construe the terms 'nation,' 'government,' 'invasion,' and 'predatory incursion….' While doing so may be no light undertaking, it is a judicial one."
This suggests he is - rightly - skeptical of the notion that all such issues are "political questions" that courts are not allowed to address. Courts are likely to have deal with these questions as the AEA litigation continues.
I have previously why these issues should not be considered unreviewable political questions here, and here. Here's an excerpt:
There is no good reason to hold that the definition of "invasion" is a political question, especially if doing so would give the president a blank check to usurp power over… Congress and suspend the writ of habeas corpus anytime he wants. Such a vast concentration of power would surely go against the original meaning [of the Constitution], as it would enable the president to engage in arbitrary detention at will – exactly the kind of abuse early Americans had experienced at the hands of the British and sought to prevent in the future. "Invasion" has a clear definition readily susceptible to judicial interpretation…
Meanwhile, also yesterday, the US Court of Appeals for the DC Circuit held oral arguments on the government's appeal seeking a reversal of Judge Boasberg's earlier temporary restraining order blocking AEA deportations. The judges seemed to share at least some of Boasberg's concerns about the lack of due process:
"There were plane loads of people. There were no procedures in place to notify people," Judge Patricia Millett said. "Nazis got better treatment under the Alien Enemies Act."
Judge Millett noted that alleged Nazis were given hearing boards and were subject to established regulations, while the alleged members of Tren De Aragua were given no such rights.
"There's no regulations, and nothing was adopted by the agency officials that were administering this. They people weren't given notice. They weren't told where they were going. They were given those people on those planes on that Saturday and had no opportunity to file habeas or any type of action to challenge the removal under the AEA," Judge Millett said.
Judge Millett is absolutely right on these points. And they should trouble anyone who cares about civil liberties, or just simply opposes imprisoning people with no due process at all.
