A federal appeals court upheld the pause on President Donald Trump’s order to deport Venezuelans accused of being members of the crime gang Tren de Aragua under the Alien Enemies Act.
The D.C. Circuit Court of Appeals ruled that the 1798 law gave presidents “near-blanket authority” to detain and deport any noncitizen from a country at war with the U.S. However, the three-judge panel ruled the invasion had to come from a foreign government rather than a gang.
“The AEA authorizes the President to restrain and remove the nationals of a belligerent foreign power,” wrote Judge Karen Henderson, appointed by former President George H.W. Bush, in a concurrence to the unanimous order. “Such power tracks when invasion is considered in its military sense.”
“At bottom, the government errs by supposing ‘that every case or controversy which touches foreign relations lies beyond judicial cognizance,'” Henderson added.
Judge Patricia Millett, who was appointed by Democratic President Barack Obama, also wrote a concurrence.
“The true mark of this great Nation under law is that we adhere to legal requirements even when it is hard, even when important national interests are at stake, and even when the claimant may be unpopular,” Millett wrote. “For if the government can choose to abandon fair and equal process for some people, it can do the same for everyone.”
But Judge Justin Walker, who was appointed by Trump during his first term, wrote a dissent. He agreed with the Trump administration that Tren de Aragua is a violent criminal organization whose members Trump is trying to deport.
Walker said the government had shown that hindering the deportations could “threaten irreparable harm to delicate negotiations with foreign powers on matters relating to national security.” However, Walker said the Venezuelans were likely to succeed in the D.C. courts, so the pause on flights should continue while the government appeals.
Venezuelan case is a flashpoint between Trump and the courts
The case is a flashpoint between the Trump administration and the courts about who will determine federal policy. Trump has called for the impeachment of judges who have ruled against his administration. But the impeachment talk sparked a rare rebuke from Supreme Court Chief Justice John Roberts, who said the recourse for adverse decisions is to appeal them.
The Justice Department contends Trump has the authority to wield the 1798 Alien Enemies Act, which was previously only invoked in times of declared war against other countries, to hasten the deportation of gang members he said invaded the U.S.
Judge ruled Venezuelans deserve change to deny gang membership
Chief U.S. District Judge James Boasberg ruled that any Venezuelans the Trump administration seeks to deport under the Alien Enemies Act should have a chance to deny membership in the gang before being deported. He temporarily blocked deportation flights while the case is litigated. Two flights, however, took off between the judge’s verbal order and written order for them to stop. Boasberg is weighing whether the government defied his verbal order, but government lawyers contend it was unenforceable.
The two flights to El Salvador on March 15 carried 238 alleged members of Tren de Aragua and 23 alleged members of MS-13. El Salvador’s President Nayib Bukele announced the figures on social media, but they have not been confirmed by U.S. officials.
The Salvadoran prison where they are being held is known for its harsh conditions. Visitation, recreation and education are not allowed at the mega-prison, according to Bukele, who has shared numerous videos of how roughly prisoners are treated.
The five Venezuelans who filed the initial lawsuit deny being members of the gang. Boasberg later expanded the suit to anyone targeted under the Alien Enemies Act. The five plaintiffs, identified only by their initials, have not yet been deported.
“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,” Boasberg ruled. “Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.”
