Federal judge appointed by Trump rules that Trump's AEA proclamation is "unlawful"
The final judgment blocks Trump's March 14 Alien Enemies Act proclamation from being used to deport anyone from southern Texas.
On Thursday morning, a federal judge ruled that President Donald Trump’s effort to quickly deport Venezuelans under a wartime power only previously exercised three times in the nation’s history — most recently during World War II — was illegal.
The permanent injunction issued by U.S. District Judge Fernando Rodriguez Jr. on Thursday bars deportations from the Southern District of Texas under Trump’s Alien Enemies Act proclamation. It is the first such final order issued in any of the many challenges to the president’s AEA proclamation.
The decision, from a judge Trump appointed in his first term, came just shy of 50 days since Trump secretly invoked the Alien Enemies Act on March 14. Under the proclamation, made public just before a court hearing on March 15, Trump purported to authorize his administration to quickly deport people from the United States who the administration alleged are members of a Venezuelan gang, Tren de Aragua.
No court has ruled that the law allows Trump to use the AEA how he did here, although he has won a few procedural arguments along the way. At the same time, Rodriguez is the first just to issue a final ruling that Trump’s action is illegal.
“[T]he historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms,” Rodriguez wrote in his opinion, finding that the 1798 law’s use of “invasion” and “predatory incursion” do not sweep as broadly as the Trump administration argued.
The administration is almost certain to appeal the decision.
The past 50 days
A federal judge in D.C. blocked AEA deportations under an Administrative Procedure Act challenge on the evening of March 15 shortly after the Trump administration made the proclamation public, granting a classwide temporary restraining order that applied nationwide.
Although the Trump administration refused to turn two planes around that ended up sending people to a notorious prison in El Salvador under the act, no further AEA-based deportations took place after those flights following the March 15 order. The judge hearing that case, Chief Judge James Boasberg from the D.C. District Court, has since found probable cause that the administration should be held in contempt actions for its actions regarding the two flights — a ruling currently on appeal before the U.S. Court of Appeals for the D.C. Circuit.
The case that led to Thursday’s ruling, however, is part of a second wave of litigation that followed an April 7 order from the U.S. Supreme Court in which the court, on a 5-4 vote, limited how the AEA proclamation and subsequent implementation could be challenged to habeas corpus petitions. As such, Boasberg’s TRO was to be lifted. At the same time, however, the Supreme Court unanimously held that due process — notice and an actual opportunity to challenge their sought removal — was required under the AEA.
On April 9, a habeas petition seeking to do just that was filed in the Southern District of Texas — which includes the El Valle Detention Center, where the two March 15 flights had originated. Filed by three of the plaintiffs in the original D.C. case, the petition was assigned to Rodriguez. That day, he issued a temporary restraining order blocking deportations of the named petitioners and of anyone else within the Southern District of Texas under the proclamation. The TRO also blocked officials from “transferring” or “relocating” anyone from the Southern District of Texas who the administration claimed are subject to removal under the proclamation.
Since that time, other judges have taken similar actions — including in the Southern District of New York, District of Colorado (which covers the whole state), and Western District of Pennsylvania — under similar habeas petitions, with all of the orders limiting their relief to the district in which the court sits (and exercises its authority). This piecemeal path was a concern about the April 7 decision voiced by the dissenting justices. Almost all of the litigation has been brought by the ACLU, with Democracy Forward also involved in some litigation. The U.S. Court of Appeals for the Tenth Circuit on April 29 denied the Trump administration’s request for a stay of the Colorado TRO pending appeal.
When one judge — U.S. District Judge James Hendrix, another Trump appointee — denied a TRO request in the Northern District of Texas, the Supreme Court stepped in, issuing an overnight order on April 19 blocking removals from the Northern District of Texas.
At the same time, in the original D.C. case, the lawyers their filed an amended action — a habeas case seeking, in part, an order that the government take “all reasonable steps to facilitate the return” of the people sent to El Salvador’s CECOT prison in the two March 15 flights so that they can receive the process the Supreme Court has said they are due.
Thursday’s orders
As for the Southern District of Texas case, after Rodriguez’s April 9 order, he later issued two follow-up orders extending the TRO while briefing and argument in the case took place. The latest TRO was set to expire at noon CT Friday — which led to a series of orders from Rodriguez on Thursday.
First, he issued an opinion and order granting the class certification sought by the petitioners — anyone who is “detained or reside[s]” in the Southern District of Texas and who are or will be designated as subject to the March 14 AEA proclamation.
Then, he issued the key opinion finding that Trump’s proclamation “exceeds the scope of the statute and, as a result, is unlawful.“ As such, Rodriguez wrote, Trump administration officials “do not possess the lawful authority under the AEA, and based on the Proclamation, to detain Venezuelan aliens, transfer them within the United States, or remove them from the country.“
In some ways, this was a very narrow opinion. In rejecting much of the Trump administration’s argument that the AEA proclamation decisions constitute a “political question” unreviewable by the courts, Rodriguez found that some aspects of where the petitioners sought review went beyond the court’s role. Specifically, he wrote:
Once a court defines the parameters of what conduct constitutes an “invasion” or “predatory incursion” for purposes of the AEA, the court leaves to the Executive Branch the determination of whether such conduct has been perpetrated, attempted, or threatened.
Although that meant the court did not look into the claims in the proclamation — several of which have been challenged by the petitioners — that does not mean anything goes. “The President cannot summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of the United States, followed by the identification of the alien enemies subject to detention or removal,” he wrote. Specifically:
While a President’s declaration invoking the AEA need not disclose all of the information that the Executive Branch possesses to support its invocation of the statute, it must identify sufficient information to permit judicial review of whether the foreign nation or government’s conduct constitutes an actual, attempted, or threatened invasion or predatory incursion of the United States.
The definition of “invasion” and “predatory incursion” in the AEA was disputed, with the petitioners arguing that they “mean a military incursion into the territory of the United States“ and the Trump administration arguing for “a broader reading” in which “these terms ‘include military action’” but are not “‘limited to such action.’“
While the petitioners provided significant backup for their proposed understanding, the Trump administration, Rodriguez wrote, “provide[s] only two examples, both of them from dictionaries.” He added that they “identify no other historical records supporting their proposed meaning of ‘invasion,’ and they offer no sources from the nation’s founding era as to the ordinary meaning of ‘predatory incursion.’” A review of “numerous historical records,” he wrote, “strongly supported the Petitioners’ position.”
As such, he concluded:
[T]he plain, ordinary meaning of “invasion” was an entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory. In a similar vein, the common usage of “predatory incursion” and, to a lesser degree, “incursion,” referenced a military force or an organized, armed force entering a territory to destroy property, plunder, and harm individuals, with a subsequent retreat from that territory. …
[W]hile the Court finds that an “invasion” or “predatory incursion” must involve an organized, armed force entering the United States to engage in conduct destructive of property and human life in a specific geographical area, the action need not be a precursor to actual war.
Looking at Trump’s AEA proclamation, Rodriguez — notably — did find sufficient information in the proclamation to conclude that “the Proclamation places responsibility for TdA’s actions in the United States on the Venezuelan government, which satisfies this aspect of the AEA.“
But:
As for the activities of the Venezuelan-directed TdA in the United States, and as described in the Proclamation, the Court concludes that they do not fall within the plain, ordinary meaning of “invasion” or “predatory incursion” for purposes of the AEA.
With that, Rodriguez ruled that the Trump’s AEA proclamation — and efforts to enforce it — are “unlawful.”
Because of how he ruled, Rodriguez did not, ultimately, decide whether the process now being provided by the government under the AEA proclamation — no less than 12-hours notice to express an intent to file a habeas position, followed by no less than 24 hours to do so (as discussed by Law Dork here) — is sufficient.
He did, however, note that it could be insufficient, writing as to the class members who had not yet filed habeas petitions, “The notice procedures may adversely affect them, to the extent that inadequacies in the notice procedures may prevent them from initiating a habeas action before their removal.“
With that, Rodriguez issued his permanent injunction:
Under the ruling, no one in the Southern District of Texas can be “detain[ed], transferr[ed], or remov[ed]” based on Trump’s March 14 Alien Enemies Act proclamation.
Great analysis, as I have come to expect.
Thanks, Chris, for your good work here.