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.

A prison guard transfers deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

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.

Comments

[ReaderY]

It is just a statutory right, as aliens in general have no constitutional right to challenge decisions either to admit or to deport them.

Jutice Jackson, writing for a unanimous court, recently held that aliens only have a right to challenge executive branch findings their deportations are based on (in that case the existence of a sham marriage) when the relevant statute says so.

The AEA, however, has long by statute permitted judicial hearings to challenge enemy alien status, as Professor Somin correctly notes. Moreover, I would interpret that right somewhat more broadly than the District Court appears to have done. I think the right to claim one isn’t in fact an alien enemy necessarily includes the right to claim that there is not in fact any war going on.

This was never a disputed issue in any previous invocation of the AEA, so it’s understandable that there is no precedent on the subject. But there is always a first time for everything.

[Riva]

"The power with which Congress vested the President had to be executed by him through others. He provided for the removal of such enemy aliens as were "deemed by the Attorney General" to be dangerous... But such a finding at the President's behest was likewise not to be subjected to the scrutiny of courts." Ludecke v. Watkins, 335 U.S. 160, 165 (1948)

Hmm..."[N]ot to be subjected to the scrutiny of the courts." 1948 is after 1943 by the way, and this is the S.Ct. But I guess that was before the judicial insurrection. Anything goes now.

[Malika the Maiz]

Riva-bot’s selection seems to say the designation of whether an alien enemy is dangerous isn’t reviewable, which isn’t the same thing as whether one is an enemy alien.

[ReaderY]

Your quote is specifically about the “dangerous” finding. And only that. As the court explained, the declaration of war entitled the President to apply the AEA to all aliens. So if he chose to limit his proclamation to a more select group, that was a matter within his discretion not subject to judicial review.

Ludecke never challenged the existence of the war or his status as an enemy alien when arrested. He was merely claiming that the Nazi surrender meant the war was over.

Although the Court held that WWII was not over, it specifically didn’t foreclose the possibility of making such a decision in another case under different circumstances. It said:

“Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately contemplated when not compelled.”

In other words Ludecke, although leaving the question undecided, has language that actually supports the idea that under compelling circumstances, i.e. when compelled, the Court in fact has the power to declare a “war” to be a sham. It found that there were no such compelling circumstances in the aftermath of World War II. But it devoted a couple of paragraphs to explaining WHY there were no compelling circumstances in that particular situation.

I think it’s entirely open to an alleged alien enemy’s lawyers to argue that the circumstances here are so different from those of WWII that the Court is in fact compelled to decide the question and should find that the “war,” whose entire existance comes only from a Presidential proclamation and nothing else - no Act of Congress, no actual hostilities against Venezuala or any part of it, nothing but a Presidential proclamation on a piece of paper - has no existence in fact or law, and the statute simply does not authorize a President to simply declare a group of aliens to be alien enemies in the absence of any act of Congress or any actual hostilities.

They’d be idiots not to raise the argument.

[Riva]

Your attempt to distinguish Ludecke does not hold water. In fact your issue (and Boasberg's intrusive inquiry) is with essential the same findings found nonreviewable in that case. And Boasberg's unconstitutional interference has even gone further, infringing on the president's statutory prerogatives and the president's inherent executive authority on many levels with his disruptive hearings and attempts to direct an overseas national security mission. This appellate judge's whine about regulations is absurd on its face. The president is not precluded from action until some regulation issues from a lower administrative agency. And, it should be noted a "declared war" is NOT a prerequisite for executive action, either under the statute or the Constitution.

[ReaderY]

Reread Ludecke. The language you quoted is specifically about the dangerous finding. Ludecke never contested that he wasnmt an alien enemy when arrested. He contested only two things: that he was not dangerous, and that the war had ended.

The petitioners in this case are contesting completely different things: that they are not in fact (and never were) alien enemies, and that there was never any war - a war never started. In other words, they are contesting exactly what Ludecke didn’t contest. Ludecke simply does not contradict earlier precedent finding that enemy alien status as such, ab initio, is contestable in court.

The Court in Ludecke held that if the a President limits actions to a subgroup of enemy aliens, courts can’t address membership in the subgroup as long as the petitioner is an enemy aliens. The limitation is essentially a kind of prosecutorial descretion, which is generally immune from judicial review, so that shouldn’t be too surprising. And while it deferred to the President and Congress in finding that WWII was not yet over, but laid out reasons for doing so in some detail. It stressed the importance of Congress’ declaration of war, the absence of a peace treaty, and the fact that there were still US troops in Europe acting as an occupation army in Germany.

Moreover its opinion contained language, that I quoted, that really does suggest that under compelling circumstances, it could potentially decide that a state of war does not in fact exist.

There is certainly an argument to be made that the circumstances in the current situation are compelling. There is, in the currentcase, no declaration of war, no active hostilities, no occupation army, absolutely none of the circumstances that the Ludecke court found relevant to its decision to defer to the political branches’ conclusion that a state of war still existed after the Nazis surrendered in WWII.

[David Nieporent]

Reread Ludecke. The language you quoted is specifically about the dangerous finding. Ludecke never contested that he wasnmt an alien enemy when arrested. He contested only two things: that he was not dangerous, and that the war had ended.

In fact, Ludecke itself expressly says that the victim is entitled to a hearing, both as to whether there's a war and whether he's an enemy alien.

[Riva]

It says no such thing. It does say the courts have no role in the process even when the executive chooses to grant a hearing before an administrative board. Not sure if you’re even reading the right case, assuming you even know how to read a case, which is doubtful. In sum, it is an executive determination, not a judicial one. Boasberg seeks to exercise judicial review where he has no authority.

[Riva]

To explain further, Ludecke involved a habeas petition, the only avenue for judicial review. Counsel for the TdA animals filed in the wrong venue for that and the district court hack lacks jurisdiction to review EO Proclamation or enjoin the President in the performance of his official duties. It's not even a close call here.

[MollyGodiva]

Everyone in the US has the same due process rights.

[ReaderY]

Let’s put it this way. People who own airplanes have a due process right to keep them, but people who don’t own airplanes don’t. Does that mean the two have different due process rights?

My position is not that they have different due process rights. My position is they in fact have the same due process rights, but due process applies only to things people have a life, liberty, or property interest in.

An alien simply doesn’t have a constitutionally cognizable life, liberty, or property interest in remaining in the United States longer than he is invited to stay. The fact that he may want to is no more surprising than the fact that I and probably you would like to have our own airplanes. But he no more has a constitutional right to come into court and demand that the court give him what he wants than you or I have a constitutional right to come into court and demand the judge get us an airplane.

Even if somebody voluntarily gives him an airplane ride, it doesn’t change this. If the owner decides to land and kick him off, that’s that. The owner is entitled to have the police come in and escort him out. Simply being on the plane, even if having been previously invited, doesn’t create some sort of constitutionally based squatters rights to remain indefinitely. Same here. Aliens enter this country by invitation and remain by an act of grace that can be withdrawn at any time.

[Malika the Maiz]

Well put.

[Riva]

No, not well put. Wrong. Let’s put it this way instead, as has in fact, the AG in their reply brief:
[T]he President’s AEA authority is not subject to judicial review. The only exception is that individuals who are detained under the AEA may challenge the legality of custody in habeas—yet Plaintiffs here intentionally waived their habeas claims, and there is no such thing as a habeas “class action” that would support universal nationwide relief.

[MollyGodiva]

You are making a circular argument. You are assuming they are illegal immigrants eligible for intimidate deportation and thus not due a hearing. But it is the hearing that determines if they are eligible for deportation.

[Roger S]

If it turns out that one of them is a USA citizen, then he can ask for a hearing to come back.

[MollyGodiva]

So you would rather send a US citizen to brutal prison in another country rather than give people due process rights? That is just awful.

[BrotherMovesOn]

Is this your first encounter with this guy?

[MollyGodiva]

I don't pay attention to the usernames of the commenters.

[Dr. Ed 2]

Molly, the middle has ceased to hold, and hence "awful" is no longer relevant.

[David Nieporent]

If it turns out that one of them is a USA citizen, then he can ask for a hearing to come back.

Ask for a hearing how, and from whom? A habeas petition is fired against the custodial warden. Do you imagine that the Salvadoran official running the Salvadoran prison in El Salvador is subject to the jurisdiction of a U.S. judge?

[Joe_dallas]

if they are US citizens, then they likely have a social security number ( for the last 35 or so years, ssn's are obtained via an application filed at the hospital shortly after birth) and the person likely has a DL .

Both data bases of which are easily assessible by law enforcement and/or ICE. Thus very easy to prove/verify if the person is likely to be a US citizen.

[ReaderY]

As I pointed out above, the particular statute the President invoked entitles them to a hearing. And a claim of US citizenship entitles them to a heating. But absent a statutory right to a hearing or a colorable claim of US citizenship, they don’t have a right to a hearing.

It’s not a circular argument.

See for example Bouarfa v. Mayorkas, which illustrates this very clearly. Only last year the Supreme Court unanimously decided, in an opinion written by Justice Jackson no less, that Congress did not give Bouarfa a right to a hearing to contest the Secretary’s determination that she had been involved in a sham marriage, and that meant that the determination was simply unreviewable by courts. As the Court noted, Congress has by statute stripped courts of jurisdiction to review certain immigration decisions, and this was one lf them. There was no hearing, and no entitlement to a hearing, of any kind.

I’m not making this stuff up. This is actually the law as the Supreme Court has articulated it, and it reaffirmed the principle only last year.

https://supreme.justia.com/cases/federal/us/604/23-583/#:~:text=The%20Supreme%20Court%20of%20the,2)(B)(ii).

[BBSquatter]

I appreciate the diligence you have invested in your replies, and they are quite helpful. An issue that sticks out like a sore thumb is the term "war".

Mexico, Cuba, Colombia, Nicaragua, Venezuela, and other Left-wing nations are indeed at war with their South and North American neighbors. Vietnam War was fought entirely differently than WWII, and the wars taking place today in our nation are just as entirely different. War has taken on a new form today, and it is just as divisive, murderous and landscape altering. True, no bombs are dropped to level cities. However, from medical scientific, physiological, biochemical and immunological point of views, all of us humans in the US are being submitted to injurious cellular perturbations due to fear, anxiety, manipulation by outside entities, and alas violence (to others and ourselves). While none of this answers Trump's order (I'm personally against deporting immigrants once they have stepped foot in America e.g. wet foot vs dry foot), some can argue effectively, with copious amounts of evidenced based scientific data, that humans in the Western World, and specifically America, are under attack by chemical ligands (Damage Associated Molecular Patterns) from environmental epigenetic sources that activate receptors (Pattern Recognition Receptors) to initiate highly destructive of self (e.g. inflammation, apoptosis, necrosis, etc). The Left vs Right cultural wars, the Biden and now Trump regimes are, were and will be the elimination of our civilization on a molecular basis. Evolutionary principles apply.

[ReaderY]

Pullution and other kinds of nuisances is not themselves acts of war as the law of war understands it. They can be causes of war. If a country dams up or polluted a river whose water is vital to a downstream country, for example, the downstream country may decide it has no choice but war. But the act of damming or polluting does not automatically create a war. The downstream countey gets to decide what to do. If the downstream country neither formally declares war nor invades or bombs the upstream country, there simply is no war.

[Riva]

The TdA animals would only be entitled to a HABEAS hearing. They didn’t file in the right jurisdiction (it should have been Texas) and, just to let you (and Boasberg) know, there is no f’ing thing as a habeas class action.

[myself]

True, but your metaphor doesn't quite capture the situation.

Some of these people may have had legitimate asylum claims. And even if not, the statute in question didn't apply to them because they weren't part of a gang (and being a part of the gang wouldn't have been relevant under the statute).

In other words, they had a right to stay on the plane a while longer. And when someone tried to take away their seat they had a right to challenge that.

Aliens enter this country by invitation and remain by an act of grace that can be withdrawn at any time.

Sure, but for obvious reasons the legislative branch has laid out specific rules for when that invitation can be withdrawn, and the executive branch is violating those rules.

[Riva]

The TdA animals have the right to a plane ticket to a holding facility outside this country, they do not have any right to remain in this country.

[wnoise]

Dehumanization. Classy.

[Malika the Maiz]

A person designated as a non-citizen doesn’t have the right to challenge that designation? So a President could decide they don’t like Reader Y, designate you as a non-citizen and you wouldn’t have the right to challenge that (ie, prove you’re a citizen)?

[MollyGodiva]

That is what they want, to give the president the power to "deport" anyone he wants without review.

[ReaderY]

See above. As I explained above, a person with a non-frivolous claim to be a citizen has a right to a hearing on it. My comments only apply to people who are indisputably aliens.

The AEA statute itself gives people designated as alien enemies a right to a hearing to contest the designation. As I explained above, their lawyers would be foolish not to take full advantage of this. But nonetheless, Congress could tomorrow pass a statute removing the right to a hearing on AEA claims, and it then wouldn’t be there.

The example given above, asylum, also involves hearing rights that exist by statute. While the asylum statute has been around a long time, nonetheless Congress could tomorrow pass a statute removing the right to a hearing on asylum claims. And there woildn’t be one, and that would be that.

[nonzenze]

I suspect that if Congress decided to erase the hearing part, the Court could find a 5A requirement for some minimal process, for example having the government file the designation in writing as to each specific person designated.

For example, an individual with the claim "the government designated John Doe but I am Jon Dun" likely has some kind of procedural due process claim. Note that this isn't about challenging the substantive basis for the designation.

[Brett Bellmore]

Even for aliens, due process has to include a hearing at which the defendant can assert that they're not an alien. This isn't for the protection of aliens, it's for the protection of citizens.

[ReaderY]

Exactly.

[Social Justice is neither]

And the way that works out today is a date us set, the criminal is set free and never seen again in court. They're arguing for stalling.tactics on bad faith.

[jimc5499]

I can see that for an alien who has complied with the requirements and is waiting for their status to be determined. For the others, there are those who never complied and those who did but committed an act that resulted in the change of their status. For them tough luck, get out.

[Joe_dallas]

As noted above - its fairly easy to show that the person is likely to be a US citizen.

if they are US citizens, then they likely have a social security number ( for the last 35 or so years, ssn's are obtained via an application filed at the hospital shortly after birth) and the person likely has a DL .

Both data bases of which are easily assessible by law enforcement and/or ICE. Thus very easy to prove/verify if the person is likely to be a US citizen.

If they are legal aliens, they likely have a a visa. Again easy to confirm.

[David Nieporent]

You are pretending/mistakenly assuming that this administration wants to confirm.

[MaddogEngineer]

You're pretending/mistakenly assuming his administration does not want that.

(That this is a story demonstrates why you are wrong. The Lebanese doctor claimed to have no idea why the government wanted to deport her. Many people played along.)

I do agree that the administration better understand that bad publicity from getting this wrong would be a real problem for it.

[SRG2]

And yet, Bob, XY and others don't accept that. They believe that the Executive designation is sufficient. Now, they're not stupid enough to say so explicitly but their arguments make it clear.

[Joe_dallas]

As noted in the preceding comment - its pretty easy to prove you are not an illegal alien.

[David Nieporent]

Not without notice and a hearing, it isn't.

[Joe_dallas]

There is no evidence of your assertion

[Joe_dallas]

Let me correct my response - With or without a hearing is pretty easy to verify that the person is likely to be a citizen or a legal alien. Most everyone has the DL with them when not at home. Most everyone knows there social security number. I seriously doubt that ICE going to ignore and/or fail to verify the persons data when he has provided the information. How many rogue ICE agents do you think there are

[SRG2]

You’re a fuckwit. It’s pretty easy to prove if you’re given a chance to prove it

If I were seized by ICE in NYC and they flew me off to Louisiana without a phone call, I would have no way to prove I am a naturalised US citizen. So how would I prove I was?

[MaddogEngineer]

Yes exactly. Why I want it too.

The problem here is that (much like asylum claims) the goal of pro-immigrant advocates is to force as cumbersome process as possible to bog down the system. In this case, to prevent mass deportations. Even though such determinations belong in Article II hearings, according to the general immigration law. Maybe the administration is asking for trouble pursuing this novel AEA route, where they will end up fighting every case in district courts with endless habeas challenges.

Immigration authorities should anticipate this. Whether it’s truly for the right reasons (of getting it right), or the wrong (avoid embarrassing headlines), there should be methods in place to verify citizenship. Otherwise every deportation target will claim to be a citizen. Much like border security, if the aliens think the gambit won’t work, they will likely stop trying.

[Life of Brian]

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.

In this case, as well as other similar ones people have scraped up for this argument, there was actually a fairly knotty question of citizenship based on, e.g., the intersection of multiple country's laws and territorial borders that morphed over the detainee's lifetime.

In my view, using this sort of actual problem as a precedent to clog up the district courts with hundreds/thousands of Venezuelan citizens and heretofore proud gang members simply saying "nuh uh" based on the smug advice of their Le Resistance pro bono attorneys is as inappropriate as it is transparent.

[myself]

In this case, as well as other similar ones people have scraped up for this argument, there was actually a fairly knotty question of citizenship based on, e.g., the intersection of multiple country's laws and territorial borders that morphed over the detainee's lifetime.

Irrelevant.

The reason his citizenship mattered is because if he wasn't a German citizen he wouldn't be an member of the enemy organization.

For the government to deport these folks under the act, at the very least it has to prove they're members of the organization in question.

Do you think they should be able to send any random foreign national, undocumented or not, to a El Salvadorean prison based only on their declaration that they're a member of the gang?

Because that's literally the precedent the administration is fighting for.

In my view, using this sort of actual problem as a precedent to clog up the district courts with hundreds/thousands of Venezuelan citizens and heretofore proud gang members simply saying "nuh uh" based on the smug advice of their Le Resistance pro bono attorneys is as inappropriate as it is transparent.

What's inappropriate is using a law that was only ever intended to be applied on the level of nations in a time of war is now being used against undocumented immigrants.

[Life of Brian]

For the government to deport these folks under the act, at the very least it has to prove they're members of the organization in question.

Contrast that made-up proposition with "a detainee was able to show he was not actually a German citizen" in the cited case. Rather astoundingly, flipping the burden to the government takes the case count from the relative handful with genuine issues to Every. Single. One.

That therefore simply can't be correct, or the courts would grind to a halt and the AEA would become de facto unusable. Oh, hang on....

[Malika the Maiz]

Good libertarianism there Bri, can’t have the burden on the government!

[myself]

I honestly wasn't even trying to lay a rhetorical trap. I was just pointing out what I thought to be obvious, that for the government to deport someone into a central American prison for being in a gang they would first need to prove that person was part of that gang.

I didn't expect Brian to start arguing for a police state.

[David Nieporent]

Maybe you could make it easier on the government by requiring all the illegal aliens to wear some kind of colored symbol or badge or patch on their clothing at all times. How about a six pointed star? Those are kind of fashionable.

[Krayt]

I'm opposed to unreviewed deportation, too, but is that your defense? Declaring oneself part of a vicious crime gang is the equivalent of being a Jew?

Do you understand how the fringes of the very far right (and left, now) view Jews?

[Sarcastr0]

Not the fringes!

[Sarcastr0]

If there is no hearing, there is no burden to flip.

It's just government declares, unpersoning happens.

Way to show your authoritarian ass.

[Dr. Ed 2]

Gaslighto, this is the consequence of the middle ceasing to hold.

[MaddogEngineer]

Ding!

[ReaderY]

No, the burden is on the alleged alien enemy to prove he is not an alien enemy. The caselaw presumes the determination is correct.

That said, I think that the lawyers for these folks, if they are competent, should be able to make out a strong case that they are not enemy aliens, indeed there is no war going on at all right now and the AEA doesn’t even apply.

Rather than challenge existing precedent, which I doubt the Supreme Court would be inclined to change in their favor at this point, I think the lawyers would be better off accepting the rules of the hearing as they are and focusing their energies on making as compelling a factual case as they can to meet their burden of proof that their clients are not alien enemies within the meaning of the AEA.

Unlike the situation in Ludecke at the close of WWII, when Ludecke claimed the Nazi surrender meant the war was over and the Court said no, here there is a case to be made that no war ever began. Congress has not made a declaration of war or an authorization for use of military force regarding Venezuala or any entity within it. There have been no open hostilities at all. Etc. All there is is a piece of paper saying there is a war with no act of Congress and nothing happening on the ground behind it.

If I were their lawyers, I would focus my energies on making that case as strongly as I could.

[ReaderY]

The AEA contains a statutory right to a hearing. If you don’t like it, your remedy lies with Congress. As long as it’s there, people designated alien enemies are absolutely entitled to its benefits, whether you think that’s good policy or not. It is not the role of courts to disobey Congress based on their own ideas about good policy.

[Seaboltm]

All federal courts need to realize they have no police power. In the end it doesn't matter what this judge or any judge says. There is no judiciary supremacy clause. I voted to have illegal aliens deported. Deport them.

[MollyGodiva]

Deport them, go for it. But they are owed due process first to verify that that it is legal to deport them.

[windycityattorney]

Check out this guy ^ This has to be a troll comment, right? How ridiculously myopic do you have to be to believe that YOUR vote means some subset of human beings in US custody go on a one way plane ride to a human rights nightmare prison in El Salvador without a hearing? And no, to be precise, you didn't actually vote for that. You couldn't have. It wasn't a thing when you voted. It didn't become a thing til 5months after voting ended.

[Malika the Maiz]

And you’d feel the same if a majority voted in a Democrat who wanted to enact gun control?

[Noscitur a sociis]

police power.

What do you think that phrase means?

[neurodoc]

He is almost certainly one of the "IANALs" here and does know the meaning of "police power."

[damikesc]

Trump should just ignore all TRO's outside of ones passed by a majority of SCOTUS justices.

Put the petty lower tyrants in their place.

[Kleppe]

Why is it that the Constitutional interpretation that Ilya advocates for is always one that goes to America's detriment? Does he think this makes him appear principled in some bizarre way?

[David Nieporent]

Why is it that you think freedom is to America's detriment?

[SRG2]

Oh, Kleppe is in favour of freedom for "decent law-abiding white folk just like [him]"

[Malika the Maiz]

Why is it you think consistently libertarian interpretations always goes to America’s detriment? Do you think it makes you seem principled in some bizarre way?

[Roger S]

Somin is not consistently libertarian. He is more consistently anti-American.

[SRG2]

He is more consistently anti-Aryan

FTFY

[Sarcastr0]

"Ignore the law, but only for the good things" is an awful way to be.

[Krayt]

"Ignore the law, but only for the good things" is an awful way to be.

I agree! It doesn't become acceptable because you believe in your heart you're the good guys, and the other guys are demon spawn.

Like, say, doing one's damndest to remove the opposition from power, arrest him, throw him in jail, and declare him ineligible to run for president anyhoo?

That's Turkey, and its brave protesters at the moment.

[neurodoc]

You're a MAGA IANAL, right?

[The Margrave of Azilia]

*The* issue in this case is whether Venezuela is an enemy nation within the narrow definition of the AEA. It's *not* an enemy nation, and the judge has had plenty of time to figure this out, and he should order the Venezuelans released - unless there's some other, legally legitimate, basis for detaining them.

As I've explained before, the Alien Enemies Act was a *consensus* measure in 1798, supported by *both* parties even at that contentious time. The power of a country, *in time of war,* to order enemy aliens out of the country, was well-established among jurists and accepted by both Republicans and Federalists, and Congress simply empowered the President to exercise, on behalf of the U. S., the sovereign wartime powers recognized as belonging to the U. S. under the law of nations.

At the same time, the consensus nature of this law indicates that the President wasn't being given any arbitrary or unduly-sweeping powers to call whole categories of unfriendly countries enemies.

The 1798 Congress passed *another* deportation law - this was the controversial and unconstitutional one, soon expired - to target citizens and subjects of countries not at war with the United States ("Alien Friends," in the confusing parlance). This was the infamous law which, coupled with the Sedition Act (and the extension of naturalization), marked Federalist antagonism to what we now recognize as constitutional principles.

Why would Congress, in its consensus Alien Enemies Act, have given the President similar sweeping and arbitrary powers to what it gave the President in the soon-expired Alien *Friends* Act?

[Brett Bellmore]

"It's *not* an enemy nation, and the judge has had plenty of time to figure this out"

I'm not at all sure the judiciary actually gets a say about that.

Congress certainly has a say in the matter, though; The power to declare war implies the power to declare its absence.

[ReaderY]

See my comments on Ludecke above. I think that Ludecke indeed suggests that, under compelling circumstances the judiciary has the power to determine, in evaluating an alleged alien enemy alien’s claims, that no war actually exists and thus the AEA does not apply. The Ludecke court found that just because the shooting had stopped after the Nazi surrender didn’t mean that WWII had ended, hence a state of war still existed. But under different (and compelling) circumstances, a court could potentially find that there is no actual state of war.

Ludecke suggests a great deal of deference to the President; the President’s determination certainly enjoys a presumption of correctness with a high burden of proof to overcome. The Ludecke court also said that if there is a declared (Comgressionally authorized) war and no peace treaty, the court’s hands may be tied. But the presumption can potentially be overcome, particularly in the absence of any Congressional authorization for a war.

[Brett Bellmore]

I do not think, given a Congressional declaration of war, that the courts have any entitlement at all to decide that, no, we are not at war. Not even a smidge.

To contradict a Presidential claim that we are at war? They're on solider ground there, because the President isn't constitutionally allocated that decision.

[Incunabulum]

Given that we do not believe in borders - what constitutes a nation nowadays?

[BrotherMovesOn]

Their Olympic team?

[F.D. Wolf]

Of course, they're entitled to a hearing. And one secures that hearing by filing a petition for a writ of habeas corpus in the district in which you are detained. Plaintiffs don't get to go judge-shopping for some Trump-hating leftist kook in some sort of BS pre-enforcement "class action" anywhere they please. The plaintiffs have no standing, and the judge has no jurisdiction, so his purported "ruling" is a nullity.

[ReaderY]

The plaintiffs here had filed a petition for writ of habeas corpus.

[F.D. Wolf]

Indeed, they did - initially - but then dismissed it, because a habeas claim must be made in the district of confinement, and even this judge knew he couldn't get around that. The five named plaintiffs here, who are not detained under the Proclamation, but claim they might be in the future, claim to be members of a "class". They have filed what is, in fact, a habeas claim, but are trying to dress it up as something else.

[nonzenze]

You know what, given that this is the internet, I'm gonna just go ahead and agree. Plaintiff's are all due a hearing, in front of a federal judge in the district in which they are detained, prior to being removed.

Resolved.

[David Nieporent]

The plaintiffs have no standing

I don't think you know what that word means.

[windycityattorney]

If you listen to the govt's oral argument in the DC Circuit; they claim that the President's proclamation means that the detainees are NOT entitled to notice of their designation as subject to the Alien Enemies Act (i.e, are members of Tren de Aragua).

So they can be just be moved onto a plane and flown to El Salvador.

If they are not entitled to notice, then they wouldn't have an effective right to habeas corpus since they wouldn't have time to effectively challenge their designation.

The only reason this case is a thing at all is because the ACLU file a pre-enforcement challenge to the Proclamation (invoking the AEA) before it was publicly issued. I don't have the specific timeline but the Proclamation issued in the afternoon on Saturday and the detainees were being loaded on a plane almost immediately. So it would appear that the timing was meant to avoid judicial review at all. That didn't work, so they violated the court's order and are now desperately trying to avoid the ramifications of that by invoking state's secrets privilege.

If the govt was confident in their legal theory - I don't think they would be acting the way they did. They were clearly hoping to avoid judicial review at all by spiriting them away to foreign soil before a habeas petition could issue. And in the same oral argument, they are now arguing the DC circuit doesn't have jurisdiction and the detainees should have filed habeas in Texas and that was their only recourse. (even though they concede they didn't give the detainees notice or opportunity/time to file before removing them).

[Brett Bellmore]

And their position, as I understand it, is that they are NOT in violation of the order, because two planes' worth of people were removed before the order was issued, and the order stated that they were not to remove anybody solely based on the Enemy aliens act, and everybody on the third plane had an outstanding deportation order unconnected to that act.

It might seem dodgy to do something you anticipate being ordered by a judge not to do, before the judge gets around to issuing the order, but judicial orders don't exhibit retro-causality.

[windycityattorney]

I have read and have no reason to doubt that the planes left Saturday afternoon/early evening DURING the hearing itself. But by the time the Court issues its written order, the planes (or at least one of them containing subjects identified by the written order) had landed in Honduras. And continued onto El Salvador the next day.

So if they were in Honduras on Sat night and the order existed; and the order included instruction NOT to hand the detainees over to El Salvador (I think the language the Judge used was not let them disembark the plane) then yes, the Govt did violate the order.

These facts are in dispute, the Court has ordered clarification/answers to resolve the dispute and the DOJ is bending over backwards NOT to answer going so far as to invoke state's secrets to NOT answer it. So I don't think the DOJ position deserves any modicum of credibility. They wouldn't fight the Court so hard or invoke state's secrets over public information (that the govt shared!) if they had the facts on their side.

[NvEric]

Pictures and behavior say it all - CRIMINALS.

For all to act the same way clearly indicates a group behavior cemented in a blood bond with death to anyone not towing the line.

[Sarcastr0]

Clearly.

We'd save a ton on legal costs if we just had NvEric do a vibes check on everyone.

Though I suspect we may find doing a simple paper bag test would yield the same results for even more savings.

[David Nieporent]

Why would one tow a line? Where would it be towed, and what would one do with it after one towed it there?

[JBogart]

Is this the first post by Donald Trump? When did he join this Conspiracy?

[DaveM]

We have nothing to fear from a hearing. Make it as public as the law allows. I don't want the government shipping some poor schlub off to a Salvadoran prison on the quiet, I want to see the evidence so I'll have something specific to thank ICE for -- or condemn them if they're trying to pull a fast one.

[Dr-P]

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject

https://supreme.justia.com/cases/federal/us/335/160/#top

[Michael Ejercito]

On the Open Thread, I asked why so many judges have hostility against the Second Amendment.

Here is Martinned2's answer.

https://reason.com/volokh/2025/03/26/wednesday-open-thread-9/?comments=true#comment-10975596

"It's an offensively dumb part of the Constitution, particularly the version the NRA is pushing for."

So I am wondering.

Would the Trump Administration prevail if they simply argue that the provision of law that restrains their ability to deport aliens is "offensively dumb"?

[Sarcastr0]

I agree that Martinned2 shouldn't submit that as an argument in a court of law.

But this is just the Conspiracy.

[nonzenze]

I'm sad to say, I think Michael is right here. If you wish for your political opponents to respect the parts of the Constitution that constrain or burden their policy objectives, you should likewise respect the parts that do the same for yours.

That's not just a principle of arguments in a court, but a key part of the bargain of a constitutional republic.

[SRG2]

I wonder how many of you who oppose Boasberg's rulings have actually read the AEA. It really offers no authority for Krasnov to do what he's doing the way he's doing it.

[Charlie Feather]

The Alien Enemies Act may not be the only tool in the administration's arsenal or the best one.

Under 8 U.S.C. § 1357(a)(3), Federal regulations allow U.S. Customs and Border Protection (CBP) to operate within 100 miles of any U.S. “external boundary” (land or coastal borders).
Within this zone, CBP enjoys expanded authority to conduct searches, question individuals, and operate checkpoints without needing warrants or probable cause.
This zone encompasses approximately two-thirds of the U.S. population and an area extending 100 miles into the interior from the entire Atlantic, Caribbean and Pacific seaboards, the entire Canadian and Mexican border, and includes major cities like New York, Los Angeles, and Chicago.
The 100-mile zone is based on federal regulations established in 1953. Courts have upheld CBP’s authority to enforce immigration laws within this area.

Thus, illegal immigrants can be arrested, held and deported if found within that zone without any 5th and 14th amendment constitutional protections.

The only due process of law to which illegal immigrants are entitled is arrest and expulsion.

[SRG2]

If they’re illegal. And even then by what authority can the regime send them to a prison in a third country?