Appeals court upholds temporary block on Alien Enemies Act deportations
In this photo provided by El Salvador's presidential press office, prison guards transfer deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador, on March 16. (El Salvador presidential press office via AP)
A federal appeals panel on Wednesday refused to allow the Trump administration to summarily deport migrants under a rarely invoked wartime power while litigation on the matter continues.
The 2-1 decision by the U.S. Court of Appeals for the D.C. Circuit delivered at least a temporary blow to the government, which argued that U.S. District Judge James E. Boasberg’s two-week ban on deportations under the Alien Enemies Act usurped the executive branch’s power to make national security decisions.
The case began with the administration’s effort to bypass immigration court hearings and deport hundreds of people it says are members of the Venezuelan Tren de Aragua gang to a notorious prison in El Salvador. It became a flash point in the growing tensions between President Donald Trump and the federal courts.
In upholding Boasberg’s order Wednesday, the appellate panel stressed the temporary nature of the ban, which the judge imposed to prevent deportations until he could hear arguments on their legality. Circuit Judges Karen Henderson and Patricia Millett cautioned in separate opinions that their decisions should not be read as a final judgment on the merits of the Trump administration’s use of the Alien Enemies Act.
Boasberg must first rule on that question, and either party in the case could then appeal.
Still, Henderson questioned the administration’s justification for invoking the act, which allows the president to remove foreigners during a declared war or invasion, noting it had only been used before in cases of armed conflict with foreign powers.
“The Alien Enemies Act was enacted by the Fifth Congress amid an actual conflict—the Quasi-War—with France, a foreign power. War was front and center in the minds of the enacting legislature,” wrote Henderson, who was appointed to the appeals court by President George W. Bush. She added later: “The theme that rings true is that an invasion is a military affair, not one of migration.”
Millett, an appointee of President Barack Obama, questioned the administration’s failure to set up a process for those targeted for removal to challenge their designations as Tren de Aragua members.
“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,” she wrote. “For if the government can choose to abandon fair and equal process for some people, it can do the same for everyone.”
Their decision drew dissent from the lone Trump appointee on the panel, Circuit Judge Justin Walker, who said the case should have been brought in Texas, where the migrants facing deportation were being held, instead of in D.C. He further questioned whether Boasberg’s order had impinged on delicate foreign policy negotiations with El Salvador, whose government agreed to imprison those the administration has identified as Tren de Aragua members.
“The orders risk the possibility that those foreign actors will change their minds about allowing the United States to remove Tren de Aragua members to their countries,” Walker wrote. “Even if they don’t change their minds, it gives them leverage to negotiate for better terms.”
In court filings and hearings, Justice Department lawyers argued that the president’s right to invoke the Alien Enemies Act was not subject to judicial review because the president has expansive power to make national security decisions—a claim Henderson flatly rejected.
Legal experts have questioned the justification for invoking the 1798 law, given that the United States is not at war with Venezuela.
The law allows for the detention and removal of citizens of a country with which the United States is at war. It was last invoked during World War II to intern Japanese, Italian and German nationals; it also laid the foundation for the internment of more than 110,000 Japanese Americans.
Trump secretly signed a proclamation invoking the law on March 14. His administration designated Tren de Araguas a foreign terrorist organization, and the proclamation claimed the gang is “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.”
The White House made the proclamation public on March 15, after the ACLU and Democracy Forward Foundation filed a preemptive lawsuit against the administration’s use of the law to deport five Venezuelan migrants. That same day, Boasberg issued a temporary restraining order, barring their deportation under the act. He expanded the order hours later to prevent the removal of any alleged Tren de Aragua members while the case before him played out.
Boasberg also ordered the return of any flights in the process of taking those migrants to El Salvador. Since then, lawyers for some of the people on those flights have said that their clients had nothing to do with the gang. They hailed the appellate court’s ruling as an opportunity to ensure they receive due process.
“The decision means that hundreds more individuals will not be immediately sent, possibly for the rest of their lives, to one of the worst prisons in the world, without ever even having had an opportunity to claim they aren’t members of the gang,” said Lee Gelernt, the ACLU lawyer who argued the case.
Boasberg has continued to press the Trump administration for details on the flights so he can determine whether they defied his order. A Washington Post review of flight records found that two flights took off for El Salvador while the judge was reviewing the case and a third flight took off minutes after his written order was issued. Trump officials said the migrants on the third flight were deported under a different legal authority.
Justice Department lawyers maintain that officials have complied with Boasberg’s ruling, and they have resisted the judge’s demands for more information. Late Monday, they cited what is known as the state secrets privilege, which allows the executive branch to withhold sensitive national security information in either criminal or civil litigation.
Trump and his allies have attacked Boasberg and called for his impeachment, a statement that drew a rare rebuke from Chief Justice John G. Roberts Jr. Rep. Brandon Gill (R-Texas) has introduced articles of impeachment against the judge.
But in deciding the appeal of his temporary restraining order Wednesday, one of the appellate court judges lauded Boasberg for handling the case with “great expedition and circumspection.”
His orders, Millett wrote, “do nothing more than freeze the status quo until weighty and unprecedented legal issues can be addressed.” She added: “There is neither jurisdiction nor reason for this court to interfere at this very preliminary stage.”
Perry Stein contributed to this report.
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