“Drawing from the established English rule that ‘alien-enemies have no rights, no privileges, unless by the king’s special favour, during the time of war,’ the act confers on the president the power to determine which alien enemies are subject to removal,” the government wrote. “The ‘very nature’ of that sweeping authority ‘rejects the notion that courts may pass judgment upon the exercise of [the president’s] discretion.’”
Using the statute in peacetime, the ACLU argues, defeats the purpose of the Alien Enemies Act. The group unleashed a quick-moving legal battle when it sued to prevent the removal of five migrants who say they were wrongfully identified as gang members.
“The president’s effort to shoehorn a criminal gang into the AEA, on a migration-equals-invasion theory, is completely at odds with the limited delegation of wartime authority Congress chose to give him through the statute,” the ACLU said.
The ACLU won a temporary restraining order, but the administration allowed the planned flights to continue. Chief U.S. District Judge James Boasberg questioned whether the administration defied his order to “turn those planes around.”
Trump attacked Boasberg, who was appointed to D.C. Superior Court by President George W. Bush before President Barack Obama elevated him to the federal bench in 2012. The president claimed the judge was a radical lunatic, troublemaker and agitator whose animus against Trump guided his ruling. Last month, he called for Boasberg’s impeachment, earning a rare rebuke from Chief Justice John Roberts, a George W. Bush appointee.
A divided panel on the D.C. Circuit upheld Boasberg’s ruling. U.S. Circuit Judge Patricia Millett, an Obama appointee, expressed concern that approximately 300 similarly situated people would be “lined up and packed on planes without notice.”
While the migrants can’t use the Alien Enemies Act to challenge deportations, the majority said the migrants are entitled to judicial review — White House Deputy Chief of Staff Stephen Miller suggested otherwise.
The court said migrants detained under the Alien Enemies Act must receive notice and be afforded a reasonable time to seek habeas relief before they are removed.
“‘It is well established that the Fifth Amendment entitles aliens to due process of law in the context of removal proceedings,” the majority wrote. “So, the detainees are entitled to notice and opportunity to be heard ‘appropriate to the nature of the case.'”
This conflicts with the circumstances of the migrants deported in this case, Sotomayor noted, but she said now it is clear that the government cannot immediately resume deportations without notice.
“To the extent the government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief, it does so in direct contravention of an edict by the United States Supreme Court,” Sotomayor wrote.
In a separate opinion, Jackson, a Joe Biden appointee, denounced the use of the court’s emergency docket — which does not require full briefing or a public argument session — to decided complicated questions of law.
“With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace,” Jackson wrote. “But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.”
The majority did not comment on controversy in the lower courts over whether the Trump administration disobeyed a court order. Sotomayor chastised the government for threatening the rule of law, and her colleagues for allowing the behavior.
“The government’s conduct in this litigation poses an extraordinary threat to the rule of law,” Sotomayor wrote. “That a majority of this court now rewards the government for its behavior with discretionary equitable relief is indefensible. We, as a nation and a court of law, should be better than this.”
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