Trump asks the justices to intervene in Alien Enemies Act removals
EMERGENCY DOCKET
On Friday, the Trump administration filed their sixth pending application for an emergency. (J Main via Shutterstock)
The Trump administration came to the Supreme Court on Friday morning, asking the justices to allow it to enforce an executive order that directs government officials to quickly remove, without a hearing, noncitizens who are designated as members of a Venezuelan gang. The order relies on a 1798 law that until now has only been invoked during wartime.
Earlier this month, Chief U.S. District Judge James Boasberg barred the federal government from removing any of the alleged members of the gang, or anyone else, under the Alien Enemies Act. In a 40-page document, Acting Attorney General Sarah Harris informed the justices that this dispute “raises fundamental questions” about who is responsible for deciding how sensitive national-security activities are conducted in the United States. The Constitution, Harris wrote, “provides a clear answer”: the President. The republic cannot afford to make a different decision.”
The White House released the executive order on 15 March. The gang expanded its presence to the United States, prompting then-candidate Donald Trump to falsely claim during a 2024 presidential debate that the gang had taken over the city of Aurora, Colo., outside Denver. It was invoked during the War of 1812, World War I, and World War II. It was invoked during the War of 1812, World War I, and World War II.
In his executive order, Trump found that Tren de Aragua – which Secretary of State Marco Rubio designated as a “foreign terrorist organization” in February – “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” Based on that conclusion, he indicated that “all Venezuelan citizens 14 years of age or older who are members of TdA are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
Five Venezuelan nationals in immigration custody who feared they would be removed went to federal court in Washington, D.C., to challenge Trump’s use of the Alien Enemies Act and seeking to stave off their removals.
Boasberg barred the federal government from removing any of the individual plaintiffs for 14 days. He also prohibited the government from removing any noncitizens who were already on flights to be removed under the Alien Enemies Act. News reports indicate that over 200 noncitizens have been removed to El Salvador since Saturday night and Sunday morning. The plaintiffs in the case are still in detention. None of the planes carrying those noncitizens landed in El Salvador before Boasberg issued his written order.
The U.S. Court of Appeals for the District of Columbia Circuit fast-tracked the government’s appeal, hearing argument on March 24 and rejecting the government’s request to put Boasberg’s orders on hold two days later, by a vote of 2-1.
Boasberg’s orders, the Trump administration contended “now jeopardize sensitive diplomatic negotiations and delicate national-security operations, which were designed to extirpate TdA’s presence in our country before it gains a greater foothold.”
The divided ruling by the D.C. The Trump administration also said that the D.C. Circuit “cries out” for the justices to intervene. The Supreme Court has “held that detentions or removals under the Alien Enemies Act have such a strong connection to national-security judgments,” that courts cannot generally weigh in, except for some habeas Corpus claims. But the D.C. Circuit did not decide whether the plaintiffs in this case should have instead filed a habeas lawsuit in Texas, where they are being held.
Boasberg was also wrong when he granted relief to a nationwide class, made up of anyone in the custody of the federal government who might be subject to Trump’s order, Harris wrote. She argued that there were too many differences between the members of a class. Trump’s order only applies to those who are members TdA. However, the individuals named in this case claim they are not members. A majority of the D.C. Harris said that the lower courts had not considered whether Trump’s order was legal, which she insisted it is. She wrote that Trump found “that TdA has both ties to the Maduro government and has itself gained control over Venezuelan territory” and “that it engaged in an invasion or ‘predatory intrusion’ into our nation.” Circuit agreed,” she emphasized, “those findings — if reviewable at all — receive the requisite deference due the President’s national security judgments.”
Harris repeated her plea, made in earlier filings, for the Supreme Court to intervene to stop what she characterized as “rule-by-TRO from further upending the separation of powers.” In this case, she complained, “the district court’s orders have rebuffed the President’s judgment as to how to protect the Nation against foreign terrorist organizations and risk debilitating effects for delicate foreign negotiations. More broadly, rule-by-TRO has become so commonplace among district courts that the Executive Branch’s basic functions are in peril.” Since the inauguration of President Donald Trump on Jan. 20, she noted, district courts “have issued more than 40 injunctions or TROs against the Executive Branch.”
Harris also asked the justices to issue an administrative stay – that is, a temporary order blocking Boasberg’s orders to give the Supreme Court time to consider her emergency appeal.
Harris’s request goes first to Chief Justice John Roberts, who fields emergency appeals from the D.C. Circuit. He called for a quick response by Tuesday, 1 April. Roberts could act on Harris’s demand alone, but it is more likely that he will instruct the plaintiffs and then refer the case to the full court.
