The Trump administration and its allies in Congress are attacking the Supreme Court for blocking attempts to deport illegal immigrants under the Alien Enemies Act before the alleged aliens can challenge the use of that authority in court. While the White House is right that the Supreme Court’s decision to issue such an order is “highly irregular,” the administration can blame no one but itself, for it repeatedly attempts to remove aliens from the country before courts can render judgment.
The Supreme Court has a right and duty to ensure the claims of the aliens detained by the government under the Alien Enemies Act are heard by a court, especially because the administration’s invocation of the AEA in an undeclared war is unprecedented.
On March 15, after issuing a proclamation invoking the Alien Enemies Act, the Trump administration began the process of flying 137 Venezuelans to El Salvador. Before the planes took off, five of the aliens secured a court order in Washington, D.C., preventing the United States from deporting them. In the time between the lawyers filing for class action protection for all 137 Venezuelans and the judge issuing a ruling granting class action status, President Donald Trump flew the rest of the aliens to El Salvador, even though the administration knew the judge’s ruling was imminent. The rush was precisely to evade the court’s impending order.
The Supreme Court later vacated that judge’s order, but only on jurisdictional grounds. Most justices held that the proper remedy for unjust deportation is a motion for habeas corpus, not a violation of the Administrative Procedures Act, and that proper jurisdiction for habeas suits is in a federal district court where the aliens are being held. In this case, that was in the Northern District of Texas, not Washington, D.C.
Importantly, that unsigned 9-0 unanimous per curiam decision held, “Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to ‘judicial review’ as to ‘questions of interpretation and constitutionality’ of the Act as well as whether he or she ‘is in fact an alien enemy fourteen years of age or older.’”
Upon arriving in Texas, two aliens filed habeas claims in Texas federal court challenging the interpretation and constitutionality of the Alien Enemies Act. The Trump administration promised not to deport the two named plaintiffs but made no such promise about the other aliens. The lawyers asked for an order preventing the deportation of all aliens held in Texas under the Alien Enemies Act, which was denied.
When the lawyers later heard that the administration was again loading migrants into planes for deportation, they filed an emergency motion requesting a new hearing. When the Texas judge did not respond, the aliens’ lawyers went to the Fifth Circuit and then to the Supreme Court, which finally issued the injunction they sought.
Sen. Eric Schmitt (R-MO) criticized the “highly irregular” nature of the lawyers’ decision to go over the district court judge’s head before he issued a ruling. However, as the Trump administration’s actions on March 15 show, it does not intend to wait for a judge to rule before proceeding with deportation.
Schmitt argues that the “worst part” of the Supreme Court’s order is that it “enjoin[ed] the President acting under his core Article II powers to remove enemies of a foreign invading force.” But the president has no such “Article II powers.” If he did, Trump would not need or use the Alien Enemies Act as legal justification for removing non-citizens from the country outside of the legislatively created deportation process. He could just point to Article II — end of story.
The Alien Enemies Act grants power from the legislative branch to the executive branch. Courts have always had jurisdiction over cases questioning whether such transfers of power are allowable under the Constitution and whether specific administrations are acting within the proper scope of the power transferred.
This is why we have cases every time a president has invoked the Alien Enemies Act, including the World War II-era case, Ludecke v. Watkins, in which a German challenged his deportation at the Supreme Court. The Supreme Court held that federal courts had no jurisdiction to question how the executive exercises its discretion over specific aliens deported under the act, and it held that after Congress had declared war, it was up to the president, not the courts, to determine when war had ended.
But threshold questions about the “interpretation and constitutionality” of invoking the AEA are clearly under the jurisdiction of federal courts, hence the most recent 9-0 decision stating that, “although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to ‘judicial review’ as to ‘questions of interpretation and constitutionality’ of the Act.”
A GOOD DAY FOR PLUARLISM IN PUBLIC EDUCATION AT THE SUPREME COURT
The Alien Enemies Act does not give the president the power to deport non-citizens whenever the president wants, nor however the president wants. Nor is there any inherent Article II power to do the same.
Trump must work within the powers granted to him by the Constitution and Congress. If he continues to play games with the Judicial branch’s obligation to make sure he stays within those bounds, he should expect supposedly “irregular” behavior on their part to become a regular obstruction.
