Donald Trump is calling on the Supreme Court to allow his administration to resume removing immigrants from the United States under the Alien Enemies Act, a centuries-old wartime law invoked for the fourth time in U.S. history to target Venezuelans.
“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country,” according to the administration’s filing with the nation’s highest court on Friday.
“The Constitution supplies a clear answer: the President. The republic cannot afford a different choice,” the petition states.
The request follows a federal appeals court’s rejection of the president’s attempt to throw out a lower-court ruling that is temporarily blocking the administration from deporting immigrants under the act.
Trump invoked the Alien Enemies Act earlier this month as three planes with dozens of Venezuelans were sent to a notorious prison in El Salvador, where they do not have access to legal counsel and face the prospect of indefinite detention.
The president’s order states that “all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua], 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.”
But administration officials have admitted in court filings that “many” of those detainees do not have criminal records, and attorneys and family members say their clients and relatives — some of whom were in the country with legal permission and have upcoming court hearings on their asylum claims — have nothing to do with Tren de Aragua. Court documents suggest Venezuelans were wrongly targeted for their tattoos as a pretext to swiftly remove hundreds of people all at once to a jail that human rights groups have labeled a “tropical gulag.”
Secretary of State Marco Rubio on Thursday conceded that the Venezuelans sent to El Salvador were not all necessarily members of Tren de Aragua. He called them a “combination of people” whose presence is “not productive to the United States” and who were “removable” by law.
The flights were in the air on March 15 when District Judge James Boasberg ordered the administration to turn the planes around. Judge Boasberg has pressed officials to answer a series of questions about the operation to determine whether they intentionally defied his court orders, teeing up what legal experts fear is a mounting constitutional crisis in which the president ignores the judiciary — and possibly the Supreme Court — as he cites inherent authority to summarily remove immigrants from the country.
On Wednesday, appellate Judge Karen Henderson wrote that the Alien Enemies Act gives the president “near-blanket authority to detain and deport any noncitizen whose affiliation traces to the belligerent state.”
But a “central limit to this power is the act’s conditional clause — that the United States be at war or under invasion or predatory incursion,” she wrote.
Trump “plucks the third-order usage” of the word “invasion” to justify summary deportations, and immigration alone also does not constitute a “predatory incursion,” the ruling states.
In a concurring opinion, appellate Judge Patricia Millett rebuked the government’s argument that immigrants, on allegations alone, “can be removed immediately with no notice, no hearing, no opportunity — zero process — to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured and their lives endangered.”
The “Constitution’s demand of due process cannot be so easily thrown aside,” she wrote.
