Court blocks deportations hours after Trump says he invoked Alien Enemies Act
The ACLU and Democracy Forward filed suit anticipating Trump's action. A federal judge hearing the case issued a classwide TRO as planes were reportedly taking off.
A little before 7:00 p.m. Saturday, a federal judge issued an order temporarily stopping deportations set in motion by President Donald Trump hours earlier when he announced that he had invoked a law last used to justify Japanese internment camps.
With planes departing nearly immediately following Trump’s announcement that he had invoked the Alien Enemies Act of 1798 — planes full of people the Trump administration would be deporting with no process — Chief Judge James Boasberg said at the conclusion of a Saturday evening hearing, "I am required to act immediately."
Boasberg issued a nationwide temporary restraining order blocking removal of “all noncitizens in U.S. custody who are subject to [Trump’s order]” — people who the government decides are members of Tren de Aragua (TdA), a Venezuelan gang — for the next 14 days or until a further order from the court.
At the hearing, Boasberg added that planes in the air were to be turned around, telling the Justice Department lawyer that his clients needed to be informed of the TRO "immediately."
Shortly after Boasberg’s minute order detailing the hearing’s outcome was posted on the docket later Saturday night, the Justice Department announced it is appealing the order to the U.S. Court of Appeals for the D.C. Circuit. TROs are not generally appealable due to their time-limited nature and their purpose being to preserve the status quo, but the Justice Department in the new Trump administration has already sought — unsuccessfully — to appeal and/or stay multiple TROs.
The fight over the Alien Enemies Act of 1798 entered the federal courts earlier Saturday, after Trump suggested — and reporting followed — that he was planning to invoke the law to deport immigrants quickly and with no process.
At 9:40 a.m. Saturday, citing the “exigent circumstances,” Boasberg of the federal district court in D.C. issued a temporary restraining order blocking the Trump administration from deporting five “Venezuelan men in immigration custody” for the next 14 days. (DOJ also appealed this TRO, but more on that below.)
By mid-afternoon, Trump had announced that he had issued his order invoking the act — as to Tren de Aragua and its members — for only the fourth time in the nation’s history — and the first time while the nation was not in war.
In addition to the planes taking off and the effect of deportation establishing the time-sensitive need for the urgent ruling, Trump’s attempt to apply the AEA to Tren de Aragua was, for Boasberg, a key to his ruling. The AEA, he said, does not likely “provide a basis for the president’s” order because it does not apply to “non-state actors like criminal gangs.”
How the day went
The ACLU and Democracy Forward had filed the case early Saturday, and — while the initial TRO seemed narrow — the case is focused on one of the Trump administration’s most aggressive and lawless efforts yet to speed deportations.
In addition to the TRO and before Trump had announced the order, Boasberg scheduled a hearing for 5 p.m. Saturday to consider the plaintiff’s request to certify this as a class-action lawsuit, a move to protect all people potentially covered by the administration’s expected action.
As CNN reported, “The Trump administration is expected to invoke a sweeping wartime authority to speed up the president’s mass deportation pledge in the coming days, according to four sources familiar with the discussions. The little-known 18th-century law, the Alien Enemies Act of 1798, gives the president tremendous authority to target and remove undocumented immigrants, though legal experts have argued it would face an uphill battle in court.”
Trump announced that he had done so shortly before the 5 p.m. hearing.
Specifically, and relevant to this weekend’s developments, Trump declared:
I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. … [B]y the authority vested in me by the Constitution and the laws of the United States of America, including 50 U.S.C. 21, I proclaim that all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.
At the 5 p.m. hearing that followed, Boasberg was told by the ACLU’s Lee Gelernt, representing the plaintiffs, that they had learned planes were already taking off containing Venezuelans being deported.
After a short break so that the DOJ lawyer, Deputy Assistant Attorney General Drew Ensign from the Office of Immigration Litigation, could consult with his clients and a short “in camera” portion of the proceedings that followed — not accessible to the public to discuss operational specifics that DOJ said could not be shared with public access — Boasberg appeared ready to move forward.
Over the course of the next 45 minutes, Boasberg provisionally certified the class — any noncitizens in U.S. custody who are subject to Saturday’s AEA order — and then heard arguments over the classwide TRO request. At the conclusion, while noting that aspects of the argument are a close question and that he could change his mind on aspects of the case with more briefing, Boasberg issued his order.
The next hearing before Boasberg is currently set for 2:30 p.m. March 21.
Where this came from
The effort was suggested by Trump in his totally inappropriate, political-rally-in-all-but-name speech held at the Justice Department on Friday.
Noting his earlier order designating MS-13 and Tren de Aragua as foreign terrorist organizations, which were also cited by Deputy Attorney General Todd Blanche in his expansive plans as No. 2 at DOJ, Trump suggested more was going to be happening on Saturday as to the latter.
“We've caught hundreds of them, the Venezuelan gang, which is as bad as it gets, and you'll be reading a lot of stories tomorrow about what we've done with them, and you'll be very impressed and you'll feel a lot safer too because they are a vicious group,” he said. “These are tough people and bad people and we're getting them out of our country ….”
The Alien Enemies Act has only previously been invoked during wartime — during the War of 1812, World War I, and World War II.
As Katherine Yon Ebright wrote at the Brennan Center last fall, “The Alien Enemies Act of 1798 is a wartime authority that allows the president to detain or deport the natives and citizens of an enemy nation. … It is an overbroad authority that may violate constitutional rights in wartime and is subject to abuse in peacetime.”
On Trump’s first day back in office, in one of his executive orders, he “declare[d] that an invasion is ongoing at the southern border.” In another, he declared a national emergency relating to cartels, Tren de Aragua, and MS-13. In it, he discussed the Alien Enemies Act of 1798 and told officials to “make operational preparations” should he invoke it in relation to any “invasion” or “predatory incursion … by a qualifying actor,” including preparations “to expedite the removal” of anyone implicated by such an order:
Shortly after that, back in January, Ilya Somin wrote about the “dangerous implications” of the orders.
Here we are
On Saturday, Trump announced he had done so.
And the lawyers at the Justice Department are defending him.
Around 2 p.m., DOJ’s Christina Greer alerted the district court that DOJ was appealing the morning’s TRO relating to the five individual plaintiffs. Shortly after 3 p.m., the Justice Department filed a request at the D.C. Circuit asking the appeals court to issue an "immediate administrative stay" of that initial TRO — allowing the deportations.
And, at 5 p..m., Ensign was arguing before Boasberg regarding the class certification and classwide TRO.
By 10 p.m., the D.C. Circuit had consolidated DOJ’s appeals of Boasberg’s two orders so they can be considered together — but it had taken no action on DOJ’s afternoon request for an “immediate administrative stay.”
This is a developing story, which has been edited and expanded significantly since initial publication, with the final update at 10:30 p.m. Please check back at Law Dork for the latest.
And here it is—Donald Trump, to whom EVERYONE is an enemy, declares war on his critics. Venezuelan gang, reporters, Adam Schiff, Nancy Pelosi, me, you … women, African Americans, Latinos, Muslims, Jews … Zoroastrians?
To a megalomaniac, this is gravy—the Eighteenth Century never looked so good!
But what about Elon Musk—an exploratory South African troop with invasion and treasure on his mind?