ACLU Files Habeas Class Action to Block Alien Enemies Act Deportations

This case has crucial implications for the ability of migrants to effectively challenge illegal AEA deportations.

(ACLU)

In my recent post about the Supreme Court's ruling in Trump v. JGG, the Alien Enemies Act case, I noted that the impact of the decision will in large part be determined by whether non-citizens slated for deportation under the AEA will be allowed to bring habeas class actions to challenge them. If class actions are permitted, then individual detained immigrants won't have to bring separate habeas cases to challenge their deportation (which many may not have the resources or the knowledge to be able to do effectively). Rather, public interest groups and others can bring systematic challenges on behalf of large groups.

Yesterday, the American Civil Liberties Union filed a habeas class action lawsuit on behalf of migrants slated for AEA deportation, currently detained in New York. They seek to certify a class that includes "All noncitizens in immigration custody who were, are, or will be subject to the March 2025 Presidential Proclamation entitled 'Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua' and/or its implementation." This includes virtually everyone who might be deported by the administration under its Alien Enemies Act Proclamation.

I am not an expert on class actions. So I cannot say much about the likelihood of success for this suit. I must largely leave that issue to others with greater expertise.

But I will note that it is not unusual for class actions to include class members who are located in different places around the country.  This situation strikes me as the kind of scenario for which class actions were created. We have a likely illegal policy that potentially harms a large number of people around the country, they have a common interest in stopping it, but many would find it difficult or impossible to bring individual lawsuits. For obvious reasons, immigrants detained by ICE may find it hard to bring individual habeas petitions, even though the Supreme Court has ruled that they "must receive notice after the date of this order that they are subject to removal under the Act [and] [t]he notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."

Elsewhere I have written about why the Administration's invocation of the AEA is illegal, and would set a very dangerous precedent if allowed to stand. People slated for deportation to brutal imprisonment in El Salvador should at the very least have a meaningful opportunity to raise these issues in court. The class action pathway seems like the best remaining available means to ensure they get the due process to which they are entitled under the Constitution.

 

Comments

[SMP0328]

Can you have a class-action Habeus Corpus petition?

[not guilty]

The Federal Rules of Civil Procedure apply to habeas corpus actions except where inconsistent with the Rules Governing Section 2254 and Section 2255 Proceedings. The habeas petitioners in the Southern District of New York do not base their claims on 28 U.S.C. §§ 2254 or 2255; they seek relief under 28 U.S.C. § 2241; 28 U.S.C. § 2243; the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.; the All Writs Act, 28 U.S.C. § 1651; and the Court’s inherent equitable powers. https://assets.aclu.org/live/uploads/2025/04/Petition-for-Habeas.pdf Per ¶61 of the complaint, the individual Petitioners seek to represent the following Proposed Class: All noncitizens in immigration custody who were, are, or will be subject to the March 2025 Presidential Proclamation entitled ‘Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua’ and/or its implementation.

Fed.R.Civ.P. 23 provides in relevant part:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

The complaint details at ¶¶62 through 67 how the criteria of Rule 23 are met.

[MaddogEngineer]

You can't have a class-action habeas petition. It's an individual, fact specific pleading. Not even when a group of people appear to have the same facts.

That was perhaps one reason why Judge Boasberg was nudging the plaintiffs to drop that cause of action in the DC district court case, because he recognized its limitations. In addition to the jurisdiction problem.

Also not surprising Somin ignores that difficulty here, writing as if this is a legitimate thing. Guess we're going to get another "strenuous objection".

[Mr. Bumble]

Somin's "living Constitution" gave birth to a new right.

[Krayt]

I'm fine with living constitutionalism that expands people's rights.

I am not fine with it expanding government power sans amendment.

This apparently contradictory position is consistent with the concept of The People retain their unenumerated rights, and government only has powers explicitely granted to it. No weasel words to give power mongers more of why they went into government. And it's certainly not weasel words for The People to state their rights, and decline to get on bended knee, begging, to those same power mongers.

[JoeFromtheBronx]

I'm not fine with expanding constitutional rights or powers without an amendment. I'd like, for instance, people who live in Puerto Rico to have the right to vote for president, but it would be a stretch under the current Constitution to give them that right.

I think common law constitutionalism is a reasonable approach and authorized by the Constitution. The term "living" constitutionalism doesn't throw me. The specific nature of rights and powers will develop under that route. Up to a point.

As to "government only has powers explicitly granted to it," the Articles of Confederation specifically says:

Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

The word "expressly" is not in the Constitution. There was an argument that it should be in the Tenth Amendment. It was not. The Necessary and Proper Clause shows there are implied powers.

[MatthewSlyfield]

"I'm not fine with expanding constitutional rights or powers without an amendment. "

I'm more case by case on this.

Read the Ninth Amendment. Do you think it's a nullity?

If it's not a nullity, the set of unenumerated rights protected by the Ninth Amendment can't be an empty set.

So, what rights do you think are protected by the ninth amendment?

[Noscitur a sociis]

You can't have a class-action habeas petition.

That seems like a rather more absolute statement than is warranted. Here is a paper with a decent overview of the issues in the immigration context: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1016&context=prize_papers

It's an individual, fact specific pleading.

That’s often true. But in this case, the complaint is alleging an issue that would be common to all the class members.

[Commenter_XY]

Your paper seems dated. Is 2019 recent enough? Immigration law changed a lot in 6 years.

[David Nieporent]

The above discussion isn't about immigration law per se. It's about habeas and Rule 23.

[Zarniwoop]

Interesting article, thanks.

[ReaderY]

The article cites Jennings v. Rodriguez as the key Supreme Court case holding that class action habeas is permissable. However, as I read it, the opinion assumed without deciding that the respondants could sue as a class, leaving the question open, and holding only that since Rodriguez individually lost on the merits, even if the other putative class members could also sue, they would lose too.

So it remains to be seen what the Supreme Court will do in a class action habeas case if the named lead petitioner wins on the merits.

This is why I’m not objecting to a case proceeding on a class action basis, as the question is indeed an open one at the Supreme Court level and there are circuit court of appeals opinions holding it is permissable. I’m simply pointing out that because it is an open question at the Supreme Court level, lawyers for petitioners should not put all their marbles into assuming the Supreme Court will bless habeas class actions and should use their current ability to pursue them in the lower courts to use discovery to identify class members currently in detention or under investigation to cover the possibilty they may all have to be named individually.

[MaddogEngineer]

Bad facts also make bad arguments, not just bad law. Certainly what the administration is trying to do with the AEA is novel, and I'm not sure I agree with its argument. But being honest, the ACLU (or others) would still be suing here even if there was a formal hostilities declaration by Congress, because they have an similar desire to move the law as the administration. I lived through the War on Terror, so I've seen this movie.

So yes, I'm going to be equally bothered by what the ACLU is trying to do here. Even though I might be in agreement with their end goal: maintaining the status quo why the merits of the AEA are argued. I merely object to warping the habeas process here, which could be seen as just as much a power grab (for the judiciary) as what the administration has been doing with executive orders.

Maybe a distinction without a difference that cannot be reached legitimately, a different kind of lawlessness, but I would have preferred the judge suspend deportations in his district under the AEA without attempting to certify a class. Target the law, not which defendants it applies to.

[ReaderY]

Why do you consider it “warping the habeas process.” Jennings v. Rodriguez was a class-action habeas case in which the 9th Circuit had said that class actions are available in habeas and the Supreme Court resolved the case by assuming without deciding that they are. The fact that the Supreme Court left the question open doesn’t make it a sure thing, but it at least makes it a perfectly legitimate argument to make. Why can’t the ACLU take it from there, say that the 9th Circuit was right on the matter, now is the time for the Supreme Court to decide definitively, and ask for a yes?

[MaddogEngineer]

Got around to reading it...your paper isn't just dated. It's written by a pro-immigration enthusiast, philosophically against against detentions and obviously in favor class action certification for habeas petitioners. Why should I think this credible? Especially when most of it catalogues why classes should not be certified according to existing precedent, yet at the end argues otherwise. Because the author favors it.

"Unfortunately, in the U.S. today it offers relief to only the smallest fraction of petitioners and has arguably failed as a meaningful check on the state’s detention power."

LOL unfortunately. Moar judicial activism! Oh yes, this is a neutral observer commenting on the state of habeas law today.

[ReaderY]

I think the paper overstates the case. But I think it does establish that multiple lower courts decided that class actions were available in habeas, and the Supreme Court expressly left the question undecided in a fairly recent case.

In a world where many law review articles argue a case for a particular side rather than even pretending to present both sides neutrally, the author is as entitled to argue the “for” case as a different author would be to martial the contrary evidence and argue “against.”

I notice that you determine authors’ credibility based on whether or not they agree with your predetermined position.

As Winston Churchill once put it,

“Every now and then a man stumbles upon the truth, but most of us manage to pick ourselves up and keep going anyhow.”

It sounds like you have managed to fortify yourself more than even most of us against letting any such stumbling blocks waylay you from your path.

[Zarniwoop]

It's written by a pro-immigration enthusiast, philosophically against against detentions and obviously in favor class action certification for habeas petitioners. Why should I think this credible?

Well, pretend the article is a brief on the merits at the Supreme Court. It's absosmurfly 100% biased in favor of habeas class actions. Now ... pretend you're opposing counsel.

What does your brief look like? What does your argument based on Fed. R. Civ. P. 23 look like?

That's not a "credibility" question; it's a "persuasiveness" question. And so far, all I've heard you argue is (per your first post)

You can't have a class-action habeas petition. It's an individual, fact specific pleading. Not even when a group of people appear to have the same facts.

Along with some vague "power grabbing" handwaving.

And none of that is legally persuasive. Try telling that to the S.Ct. at oral argument, followed by "my argument is done" and sitting down.

[not guilty]

Zarinwoop, I suspect that when members of the MAGA cult are asked to compose a draft pleading, they break out in hives.

Their rules of argument seem to be:

Ipse dixit now!
Ipse dixit tomorrow!!
IPSE DIXIT FO'EVAH!!!

https://www.youtube.com/watch?v=6C-kBVggFrs

[Zarniwoop]

A district court in S.D.Tx. has already granted an ex-parte TRO in a putative habeas class action preventing AEA deportations of the entire class of Venezuelans held in the district:

https://storage.courtlistener.com/recap/gov.uscourts.txsd.2000771/gov.uscourts.txsd.2000771.12.0.pdf

The Supreme Court has established that individuals detained under the Alien Enemies Act “must receive notice . . . that they are subject to removal under the Act[,]” and the “notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” Trump v. J. G. G., 604 U.S. —, 2025 WL 1024097, at *2 (Apr. 7, 2025). In the present matter, the Court finds that the removal of J.A.V, J.G.G., W.G.H., or any other individual subject to the Proclamation, by the United States would cause immediate and irreparable injury to the removed individuals, as they would be unable to seek habeas relief. See Nieto-Ramirez v. Holder, 583 F. App'x 330, 331 (5th Cir. 2014) (finding that habeas petition which challenged the denial of bond by the immigration judge was mooted by the detainee’s subsequent removal). Furthermore, if the United States erroneously removed an individual to another country based on the Proclamation, a substantial likelihood exists that the individual could not be returned to the United States. See Abrego Garcia v. Noem, No. 25-1345, 2025 WL 1021113, at *4 (4th Cir. Apr. 7, 2025) (Thacker, J., concurring) (noting the United States’ argument that a district court lacks the jurisdiction to compel the Executive Branch to return an erroneously-removed alien to the United States).

(bold emphasis added). So to point a few things out:
1) the D.Ct. judge didn't have a problem with the idea of a habeas class action, at least in the ex parte context;
2) the D.Ct. limited the order against removal to persons in the district, complying with the S.Ct.'s decision on proper venue in habeas;
3) the D.Ct. is listening to the S.Ct.'s statement about notice and meaningful opportunity to challenge AEA deportations; and
4) the gov't's extreme claim of inability to return Mr. Abrego is already biting the gov't in the posterior on the issue of irreparable injury (and correctly so, IMHO).

[Zarniwoop]

here's the docket - most of it's not even available yet on courtlistener (the case was filed this morning, and the TRO granted mid-day):

https://www.courtlistener.com/docket/69862833/jav-v-trump/

[not guilty]

Thank you for the links.

[SRG2]

I note that the judge was appointed by Trump.

[MollyGodiva]

Class action is absolutely needed for this. The legal arguments are the same for all. It offends the concept of justice to force detainees with few assets and very limited contact with the outside world to hire a lawyer and pursue the claims individually. All ICE has to do is make too hard for the detainees to access a lawyer and they can deport them and claim due process was satisfied.

[Joe_dallas]

not hard for a person to show that they are either citizens or legal aliens, or legal residents. The info in readily assessable to ICE in the various state DL data bases or in the SSA data base.

[Zarniwoop]

First, the factors you list are completely irrelevant to the single question of law common to all of the class members: is Trump's invocation of the AEA permitted under the statute? Are we at war with Venezuela/TdA? If the answer is "no", then hundreds or even thousands of fact-based individual cases will simply poof out of existence. This is precisely the sort of scenario where class actions are appropriate and efficient. Even DOGE might approve!

Second, the factual Q of whether a particular person is actually a member of TdA is not so simple as looking something up in a database. If the answer above is "yes", then we can start providing meaningful due process per the S.Ct.'s recent ruling.

[DJK]

Commonality is only one of the four elements (see Rule 23(a)... this is just element (2)) required to even think about permitting certification of a class. And that's before you even get to the Rule 23(b) requirements. It is certainly not guaranteed that this would ever pass muster as a class action.

[David Nieporent]

Again, the question of whether the AEA can be applied to TdA is a quintessential question amenable for class treatment.

[Zarniwoop]

It seems to me that (a)(1) or (a)(3) are unlikely to weigh against a habeas class in the present case. No info or opinion on (a)(4) at the moment, but if I had to guess I’d think these plaintiffs are as good class reps as any other.

Either a (b)(1)(A), (b)(1)(B), or (b)(3) class seems plausible here.

But class actions aren’t my specialty. What do you think the gov’t’s best arguments against a class action are?

[Noscitur a sociis]

The Alien Enemies Act permits the removal of legal aliens (if its other terms are satisfied). That is, presumably, one of the reasons Trump is trying to use it.

[David Nieporent]

1) Nothing about this case has anything to do with whether someone is a legal alien. The AEA — if usable under Trump's loony theory — applies to legal aliens too.
2) You again mistakenly assume that this administration cares.
3) No, in fact, you are wrong about your claim anyway, as you've already been told; some states give out DLs to illegal immigrants.

[Joe_dallas]

DN comments wrongly again _ "No, in fact, you are wrong about your claim anyway, as you've already been told; some states give out DLs to illegal immigrants."

DN - Not only did you not do your homework - you copied several other leftists that didnt do their homework - if you did you would be wrong on this point every time. Those states that give DL to illegal aliens require some form of ID and if not provided, then the state dMV shows that in the data base.

Try again

[David Nieporent]

First, you know as much about what state DMVs show in their databases as you do about 17th century Swahili poetry, or virology, or climate change, or law. Second, how is your claim even relevant to this discussion? So what if they require ID?

[Joe_dallas]

DN - point number - legal aliens arent going to be part of a predatory incursion - ie there are here in the US legally.

Keep throwing more non relevent points that dont apply

[David Nieporent]

There is no "predatory incursion."

[rloquitur]

Laken Riley could not be reached for comment.

[David Nieporent]

I am unaware that Laken Riley was killed by operatives of the Venezuelan government. If you have info to that effect, you should share it with the state of Georgia.

[ReaderY]

David Nieporent - At common law, upon declaration of war, every enemy citizen automatically became an outlaw, and hence illegal by definition, regardless of their prior legal status. The late 18th-century AEA could be construed as an attempt to regularize their status. Alien enemies, like enemy combatants, are a special category. Perhaps it might be best to say that upon the outbreak of war, or at least when a valid AEA Presidential proclamation is issued, the usual distinction between “legal” and “illegal” dissappears and they all get lumped into “alien enemy” status.

[SRG2]

But what if the database is in error? Mistakes happen. What if ICE don't bother to look, or seize the wrong Diego Garcia (to choose a name at non-random ???? )?

Funny how the government is so inefficient, can't be trusted, has antiquated or outright wrong systems - until it comes to possible illegal immigrants, when all of a sudden the government operates flawlessly and no mistakes are made (except for that one guy but he's a foreigner so fuck him).

[ReaderY]

There are reports already circulating that not only has ICE made significant mistakes, the people identifying gang members are complely incompetent.

https://www.npr.org/2025/03/31/nx-s1-5345832/advocates-say-flawed-checklist-dhs-venezuelans-for-deportation-under-alien-enemies-act

[MaddogEngineer]

You don't see the problem right there in the headline?
"Advocates say flawed 'checklist' targets Venezuelans"

I've learned by now "advocates" will often say things publicly, never critically scrutinized by certain news orgs, which are not actually true. Maybe this is accurate, but I'm not going to accept this at face value.

Because we've been seeing this same show in other recent episodes. The Lebanese doctor who claims she has "no idea" why her visa is being revoked...even though she just attended a Hezbollah leader's funeral in Lebanon.

Narrator voice: sometimes they do, in fact, know why.

NPR has a track record of repeating whatever the right kind of partisans say to them. Maybe they are right about this. I'll need more than their say-so.

[ReaderY]

Dunning-Kruger seems to be a hallmark of this administration.

[The Margrave of Azilia]

Just get a test case to the Supreme Court, assuming the Supremes cooperate.

[DaveM]

A "class" of "individual persons" whose cases must be decided independently is a non sequitur. I have no idea what a court is even supposed to do with a contradictory suit.

[Social Justice is neither]

Waste time and taxpayer money in order to facilitate criminals disappearing into the aether and stay longer, preferably on more taxpayer funds. That's Somin's left libertarian ideal.

[Joe_dallas]

notice how many leftist are on the bad guys side, whether it be antifa, hamas, criminal gangs, illegal immigrants, etc.

[ReaderY]

Jews. Don’t forget the Jews.

And black people.

[The Margrave of Azilia]

The woke Left loves the Jews, it only hates Zionist settler-colonialists.

[SRG2]

So you believe the government when it tells you that someone is here illegally. Time was, suspicion of government was regarded as a conservative virtue.

[MaddogEngineer]

Not everyone is bothered about the notice and hearing requirement. That's no reason to flout habeas precedents.

Due process here is about protecting citizens from accidental deportation. Not to protect an alien from an improper deportation, though that is an incidental benefit to him here, which is a good thing.

[David Nieporent]

You don't do a whole lot of litigation, do you.

[DaveM]

None, to be precise. Not a lawyer, don't want to be. Just an ordinary Dave.

[David Nieporent]

Yes, I know. It was ironic understatement, given your nonsensical claims about how class actions work.

[windycityattorney]

In the briefs cited in the DC case, a couple cases came up named Citizens Protective League vs [defendant]. The plaintiffs were German nationals. Like in Ludeke, they were detained and arguing the war was over but peace had not yet been declared so their arguments got nowhere fast.

I can't tell from the brief ruling of the citizens protective league vs Byrnes case if it was a 'class action' per se but from the caption it appears a group [the citizens protective league] filed what appears to be a class action on behalf of numerous detained German nationals. Granted, it was not filed in habeas. It was for an injunction to prevent removal. But now that the US Sup Ct says any AEA case must be filed in habeas...perhaps these examples would provide some guidance to the ACLU or the courts.

[DaveM]

Habeus by definition is an adjudication of an individual, is it not? Logically, I do not see how one could ever bring a "class" suit to a habeus court. It's a charley horse between the ears.

[David Nieporent]

No, habeas (not "habeus") is not "by definition" an adjudication of an individual. That is indeed the typical use case of a habeas claim. But habeas can be used to challenge a collective policy

[MaddogEngineer]

Can you enlighten me further? Because your last sentence doesn't really support your first. It's like you've doing an underwear gnome phase 2 in between. A collective policy is not the same thing as a collection of persons.

[David Nieporent]

A class in a class action is a collection of persons who share some common legal claim. People subject to a common policy is virtually the definition of a class — provided, as I mentioned elsewhere, that there is a common answer for those people.

Most habeas cases turn solely on individualized questions — e.g., was the trial I received unfair in some way; did the police violate my rights, etc. Those are going to be fact-specific inquiries not suitable for class treatment. But "is the presence of some members of TdA in the U.S. an invasion by an enemy nation or government?" is not such a question. It's a common question with a common answer, and if the answer is "No," then the AEA cannot be used against any members of the class.

If the answer is "yes," then questions about whether a particular person is a member of TdA would need to be resolved on an individualized, not class-wide, basis.

[MaddogEngineer]

Following up on your last sentence (again)...

Of course habeas can be used to challenge a collective policy...applied against an individual, by that individual. That's not the same thing as certifying a class of people under a habeas action. Which apparently is unprecedented, because no one is mentioning any. Like I said above, doesn't mean new ground won't be broken here. But it's certainly true that historically this it's never been done. Which is what is rather obnoxious about the ACLU supporters attitude here: OF COURSE this can be certified as a class. Appreciate ReaderY being honest about that, suggesting his dual track approach.

[windycityattorney]

Not in all contexts. Particularly when challenging a statutory scheme that applies to all individuals subject to it equally. Which fits this alien enemies act litigation.

It's a statutory scheme [statute] but this particular invocation of the statute and its implementation raise common issues of lack of due process or simply statutory violations. Namely, that the proclamation itself as interpreted and executed by the executive doesn't provide any process for challenging one's designation or removal. The Sup Ct has now spoken that AEA detainees have the right to notice [of their designation as enemy aliens] and ability to challenge their designation prior to removal as well as the statute itself or its constitutionality.

The link to the scholarly article posted above by noscitur shows why class action in the habeas context fits all the same policy rationales for class actions in all other [non habeas] contexts. Judicial economy concerns, commonality of legal arguments, capable of repetition yet evading review [the govt can moot a habeas claim under the AEA rather easily avoiding final judgments by simply un-designating any particular detainee as a member of TdA or similar) etc... But most importantly, it lists dozens of examples of habeas class actions in the immigration/deportation context in the federal appellate courts and US Sup Ct. So its not novel in this context. Traditional habeas [collateral attack on a criminal conviction or sentence] also has class actions when, for example, all prisoners at a facility are challenging not their detention but say...the conditions at a prison are so deplorable that it rises to an alleged constitutional violation for every prisoner. So class actions and habeas are not strangers.

It was the Sup Ct that ruled challenges to AEA application have to be brought in habeas. Presumably they were well aware of habeas class actions as they have dealt with the topic repeatedly. Since the AEA statute - despite being ancient and preceding immigration statutes/rules/procedure of immigration detention as it exists today -it still deals with alien removal so I can't think of any legitimate reason why if all the other factors of class action are met it wouldn't work here.

[MaddogEngineer]

I don't think your summary of what the Supreme Court rules is quite fair to the big picture. The Court ruled, in this circumstance, that detainees have a right to notice and hearing. I say in this circumstance, because the primary condition for invoking the statute does not exist (a declared war), and the administration's justification for it is novel and disputed.

Were we in an active shooting war, with the homeland under attack, I'm not sure the Court would give the same answer, because of presidential war powers. Of course, in that case, it's likely that the government would detain enemy aliens, not deport them.

[ReaderY]

See my comment below.

[not guilty]

"A 'class' of 'individual persons' whose cases must be decided independently is a non sequitur. I have no idea what a court is even supposed to do with a contradictory suit."

Every class proposed/certified under Fed.R.Civ.P. 23 is comprised of individual persons.

A determination that the Alien Enemies Act does not authorize the proclamation purportedly issued by President Trump would not preclude deportation of anyone deportable under other statutory authority, provided that applicable procedural safeguards are afforded.

[John F. Carr]

If the courts rule the alien enemy policy illegal a class action saves time by litigating the decisive issue once. If the courts rule the policy legal then each class member gets an individualized hearing on citizenship and gang membership and a class action is not appropriate.

The filing fee for a writ of habeas corpus is $5.

[shawn_dude]

$5 plus the cost of the lawyer you'll need to file it for you while you're locked in detention hundreds of miles away from any family or friends who could assist.

[The Margrave of Azilia]

Well, maybe the Supreme Court can come out and rule on the substance. How about this: The Alien Enemies Act applies only to countries (not private gangs) at war with the U. S. For Venezuela to be at war with the U. S., there would have to be a declaration of war, an actual or imminent invasion or an actual or imminent predatory incursion. As for the latter, it needs to either be an open commando-style raid (not privately known only to the President) or it must threaten to disrupt Congress to prevent deliberation on whether to declare war. If the alleged predatory incursion is supposedly top-secret and doesn't threaten Congress, there's no reason for Congress to abdicate its war-declaring function to the President.

Other interpretations would turn a consensus (Republican/Federalist) law from 1798 into an instrument of Presidential tyranny - if other countries can readily be declared to be enemies without Congressional approval, and their citizens (regardless of personal guilt) subject to deportation, then the Pres has too much power, duh.

[Bruce Hayden]

But declaration of war is not necessary. When was the last time that the US declared war on another country. December 1941? Yet we have been fighting more often than not, pretty continuously, since then.

The argument seems to be that these gang members were directly or indirectly trained by a quasi hostile foreign government, then sent here to destroy this country from within. That would arguably be enemy action by another nation against the US.

[Estragon]

So true! You can tell the administration and DNI are taking this “enemy action by another nation” seriously, just look how much discussion it gets in the Annual Threat Assessment that was just presented to Congress by Tulsi Gabbard, John Ratcliffe and Pete Hegseth:

https://www.dni.gov/files/ODNI/documents/assessments/ATA-2025-Unclassified-Report.pdf

[The Margrave of Azilia]

With CTRL-F, I didn't find a reference to Venezuela being at war with the United States. But I bet in the *classified* version of the report there's a whole chapter about it. /sarc

[Estragon]

Gosh, you’re right!

I’ll have to double check but maybe these government-trained Venezuelan gang members appear on p. 5, where they discuss “Non-State Transnational Criminals and Terrorists.”?

I swear I saw it, right in between the paragraphs that ARE included about Mexican and Colombian drug cartels…

[The Margrave of Azilia]

"The argument seems to be that these gang members were directly or indirectly trained by a quasi hostile foreign government, then sent here to destroy this country from within. That would arguably be enemy action by another nation against the US."

Congress should declare war if that's going on. Allowing the AEA to be invoked based on trust-us, top-secret evidence, while bypassing Congress, would be awarding the President too much power.

The point of the Pres kicking out enemy citizens during a predatory incursion, without having to go to Congress, is that the incursion might be so sudden that Congress couldn't act. Well, Congress has had time to act, but nothing's been done. Unless *that's* top-secret, too.

And if the infiltration is secret, there's less need to kick out Venezuelans anyway, because to all appearances our two countries are at peace and why would they stick their necks out to help a top-secret incursion?

In the case of a planned or actual predatory incursion, there may be an initial period when only the President knows about it, but if the incursion is real it will soon be known to the public as well, unless it was prevented.

Recall that in 1798, there was plenty of talk about French agents and French sympathizers, but President Adams didn't think the Alien *Enemies* Act gave him the authority to treat the French as an enemy nation. That was what the Alien *Friends* Act (the constitutionally controversial provision for kicking out aliens with minimal due process) was all about, and that was a partisan measure which expired in 1800 (1801?).

[not guilty]

"But declaration of war is not necessary. When was the last time that the US declared war on another country. December 1941? Yet we have been fighting more often than not, pretty continuously, since then."

Sure it's phrased in the disjunctive, but either a declared war or an invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government is an essential prerequisite to invocation of 50 U.S.C. § 21.

"The argument seems to be that these gang members were directly or indirectly trained by a quasi hostile foreign government, then sent here to destroy this country from within. That would arguably be enemy action by another nation against the US."

If that is the argument, fine. Let the habeas Respondents adduce admissible evidence thereof before an Article III District Court.

[SRG2]

I think that there's room to acknowledge the broader principle, that if the government claims that someone's status is such that they can be deported, and the person claims their status is different and means they can't be, they're entitled to a hearing to determine that status.

I think this is essential, else the government can deport naturalised citizens (as I already noted somewhat earlier.)

[Bruce Hayden]

Nothing says that they can’t get a hearing. What the Supreme Court essentially said was that these illegals’ solution is by Writ of Habeas Corpus, and that must be filed where the illegal is detained, and not in DC, where the judges are more sympathetic.

[SRG2]

You must have missed all the people here and elsewhere claiming that as the detainees were illegal, they had no rights.

[not guilty]

"Nothing says that they can’t get a hearing. What the Supreme Court essentially said was that these illegals’ solution is by Writ of Habeas Corpus, and that must be filed where the illegal is detained, and not in DC, where the judges are more sympathetic."

Since that Supreme Court ruling, district judges in the Southern District of New York and the Southern District of Texas have issued restraining orders in response to habeas corpus actions filed by detainees housed in those districts at the time of filing.

Judge Hellerstein in New York has certified a class, for purposes of this habeas action, designated as follows: All noncitizens in U.S. custody in the Southern District of New York who were, are, or will be subject to the March 2025 Presidential Proclamation entitled 'Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua' and/or its implementation, who have not been given notice following the Supreme Court's decision of April 7, 2025, Trump v. JG.G., No. 24A931, 2025 WL 1024097, and granted a hearing. https://www.pacermonitor.com/public/case/57572514/GFF_et_al_v_Trump_et_al

Judge Rodriguez in Texas has enjoined the Respondents from transferring, relocating, or removing the individual Petitioners or any other person that Respondents claim are subject to removal under the Proclamation, from the El Valle Detention Center; and
Respondents are enjoined from transporting such persons outside of Willacy County or Cameron County, Texas, without an Order from the Court. https://storage.courtlistener.com/recap/gov.uscourts.txsd.2000771/gov.uscourts.txsd.2000771.12.0.pdf

[ReaderY]

I think that, in addition to the class actions, plaintiffs’ lawyers should be careful to advance individual petitions, and to get them if possible to the appellate and Supreme Courts at the same time as the class actions. That way, if the Supreme Court disapproves of class action habeas, it can simultaneously reach a decision on an individual petition that can serve as precedent that can serve as a soringboard for future action.

In addition, in those cases where district courts are proceeding on a class action basis, lawyers might want to consider making vigorous use of discovery and other tools to identify individuals as soon as possible to add to lists of named individual plaintiffs, with papers ready to go, in the event class action is ruled unavailable for habeas.

Rather than just going by the route that would be most promising if successful, it might be more prident to also address the possiblity of failure and have cases proceeding on multiple routes with the ability to switch quickly in the event one route succeeds and the other fails.

[Charlie Feather]

I doubt that Trump even needs the AEA to deport aliens.
8 U.S.C. § 1357(a)(3) allows CBP to seize any person within 100 miles of a US border for violating immigration law or who presents as undesirable or as a threat – like criminal gang members – and arrest them and expel them on the spot if possible. There is no further due process necessary. No 5th or 14th amendment protections.

There are only three situations that an alien may use to challenge his deportation:
1) He entered the country legally through a port of entry
2) He is residing or visiting in the country legally
3) He has the necessary documentation to prove 1 and 2 above

Absent that … Out he goes!

[SRG2]

expel them on the spot if possible

Nope. 8 U.S.C. § 1357(a)(3) says nothing about this. It only covers searches. But other sections do cover this issue.

(a)2
but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States

(a)4
but the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States

Seems pretty clear.

[thesafesurfer]

Professor Somin offers many troubling perspectives in this article. He calls illegal immigrants "non-citizens." This is entirely erroneous. The United States has many different types of non-citizens, and they all have a legal right to residence. Illegal immigrants have none. This slight of hand hampers the entirety of the argument.

The burden of proof must be on the individual to prove the legality of their entry. When driving a car it is the driver's burden to prove a legal right to drive by having a license. An individual within the borders of the United States has the burden of proving their legal right to be here. I am not presumed to have a right to drive. An individual in the United States should have the assumption of having the right to be here.

To the crux of the story, hopefully a judge will deny class action status, which rightfully belongs to legal residents, and leave the burden of proof with the individual claiming legal residence.

Throughout the piece the author keeps making the assumption of legal status with the term immigrant. Illegal immigrants are not legal immigrants, and the burden of proof should be on the individual without any prior assumption that the author gives them.

A legal immigrant has a small bundle of documents and files to prove their status. The individual must provide proof of their status nt the government proving their lack of status.

[Noscitur a sociis]

Please prove that you’re allowed to be here.

[O Tempora]

A birth certificate or a US passport should suffice. Maybe even a driver's license issued by a state that doesn't issue them to illegal immigrants. Won't be perfect, but close enough for government work. We wouldn't have to have a discussion about presenting one's papers if the Biden Administration hadn't thrown open the doors to any and all. But now that the country has been flooded by illegals maybe "papers please" is a necessary and non-totalitarian response.

[David Nieporent]

No, it's still a totalitarian response.

[David Nieporent]

Professor Somin offers many troubling perspectives in this article. He calls illegal immigrants "non-citizens." This is entirely erroneous. The United States has many different types of non-citizens, and they all have a legal right to residence. Illegal immigrants have none. This slight of hand hampers the entirety of the argument.

Not only is your argument totalitarian ("papers please"), but it also fails to even understand the topic we're discussing. There is no sleight (not "slight" — what would that even mean?) of hand; the AEA (the topic of this discussion) applies to people here legally and illegally alike. All that matters is in fact that one is a non-citizen.

[MaddogEngineer]

Non-citizen being a contemporary colloquial for the immigration law term "alien". Though I agree that non-citizen is an apt descriptor, as citizens have more privileges and immunities than non-citizens.

[Bruce Hayden]

But legal resident aliens have more rights than illegals (illegal aliens). David, being a leftist, wants to recast the debate from legal versus illegal aliens, to citizens versus non-citizens.

The threshold question is whether someone is legally present in this country. If they aren’t, they can be deported, presumably back to their home country. Do they have a Green Card? Nope - Bye, bye. But if they do have one (etc), then the government has to prove that they shouldn’t - e.g. that they lied on their visa application.

[David Nieporent]

The threshold question is whether someone is legally present in this country.

Not with respect to the Alien Enemies Act, dimwit. In fact, that's utterly irrelevant with respect to the Alien Enemies Act. The threshold question is whether there is a war, invasion, or incursion by a foreign nation or government.

[David Nieporent]

[Double posted somehow.]

[JoeFromtheBronx]

He calls illegal immigrants "non-citizens." This is entirely erroneous.

How is it "entirely" erroneous? Are "illegal immigrants" actually citizens? If not, it is not entirely erroneous to say they are non-citizens. The problem, apparently, is that it is not derogatory enough.

[Bruce Hayden]

See above. Because it confuses the real distinction here - those who are legally present in this country (citizens and legal aliens) and those who are not (illegal aliens). The minimum Due Process due is a hearing to determine which of those two classes someone belongs in. After that determination, the illegals are presumably deportable, while the opposite is true for those legally present in this country.

[David Nieporent]

Bruce, very confident but always wrong about law. Nothing you said in this paragraph is correct with respect to the topic of this discussion:

ACLU Files Habeas Class Action to Block Alien Enemies Act Deportations

[JonFrum]

There are millions in the country illegally. Every last one of them should be deported - no exceptions.

[Zarniwoop]

You sound like someone who would have gleeful returned this ship to Nazi Germany:
https://en.wikipedia.org/wiki/MS_St._Louis#The_%22Voyage_of_the_Damned%22

[Zarniwoop]

Speaking of habeas:

The Supreme Court on Thursday backed a lower-court order requiring the Trump administration to “facilitate” the return of a Maryland man who was mistakenly deported to a mega-prison in El Salvador last month.
...
There were no noted dissents.

[not guilty]

The order is here: https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf

The United States has been paying the Salvadoran government millions of dollars to house prisoners removed from the U. S. Will President Trump now remind President Nayib Bukele of the maxim that the man who pays the fiddler calls the tune?