Habeas and the Alien Enemies Act: Challenges and Opportunities

The Supreme Court’s procedural ruling in Trump v. J.G.G. could have real costs for those swept up by the AEA and for the separation of powers.

In an important early test of its response to President Trump’s unchecked use of federal immigration power, the Supreme Court last week granted the administration’s request to vacate the temporary orders the district court had entered preventing the administration from removing alleged members of the Tren de Aragua (TdA) gang to El Salvador under the Alien Enemies Act of 1798 (AEA).

In a four-page, unsigned opinion in Trump v. J.G.G., the Court ruled (5-4), over two sharp dissents, that the plaintiffs—five named individuals and a class of all noncitizens subject to Trump’s proclamation under the act—had to bring their claims through habeas corpus petitions in the district of confinement rather than under the Administrative Procedure Act in Washington, D.C., where the plaintiffs filed their initial challenge.

Importantly, the Supreme Court confirmed that individuals subject to removal under the AEA are entitled to due process, including notice and an opportunity to challenge their deportation. It left open, however, critical questions about the novel invocation of this rarely used wartime statute against a drug gang and about how due process protections would be implemented against an administration that appears determined to avoid any legal constraints and that had flouted the orders of the district judge in this very case.

More broadly, the decision raises significant questions about the Court’s willingness to serve as a meaningful check on the dramatic expansion of executive authority in the second Trump administration and the degree to which the Court may be willing to safeguard its own power and prerogatives through appeasement. Here, the Supreme Court’s willingness to resort to a procedural ruling to avoid a direct clash with the executive could have real costs, not just for those swept up by the AEA, but also for the Court’s position in the separation of powers.

What the Supreme Court Got Right and What It Got Wrong About Habeas

The litigation in J.G.G. v. Trump began with a pattern that has become all too familiar: The Trump administration hatched a plan, in secret, to use theories of virtually boundless executive power to effectuate the mass removal of noncitizens from the United States and then disregard, if not outright defy, the court orders resulting from litigation challenges. After the plaintiffs’ counsel at the ACLU and Democracy Forward got wind that the administration was planning mass removals under the AEA, they sought emergency relief in federal district court in Washington, D.C.

The government, meanwhile, sought to hurry the named plaintiffs and dozens of other detainees onto planes and out of the country without any chance to speak to their lawyers or be heard by the court. Then, even after U.S. District Judge James Boasberg ordered the government to temporarily halt any removals under the AEA and to turn around any flights, the government continued to bring detainees to El Salvador, where they remain imprisoned. In a divided opinion, the U.S. Court of Appeals for the D.C. Circuit denied the government’s emergency request to stay Judge Boasberg’s order preventing the removals from continuing.

The Supreme Court’s ruling lifts the pause and wipes out the litigation in Washington. It requires that future challenges be brought through habeas and in the district where a prisoner is confined (which will likely be primarily within the U.S. Court of Appeals for the Fifth Circuit, where approximately half of the immigration detainees in the country are incarcerated, given the administration’s desire to exploit the advantages of judges there who have previously supported its harsh approach to immigrants and the border). The opinion does not address Judge Boasberg’s separate, ongoing inquiry into the government’s possible noncompliance with his prior orders. Nor does it address the fate of the at least 137 individuals deported to El Salvador under the AEA, where they remain confined in its notorious Center for Terrorism Confinement under brutal and inhumane conditions (Around 100 others were purportedly deported to the prison under other authorities)

Before moving to some questions that habeas litigation may raise, it is important to underscore briefly what the Court got right and wrong about the writ. Habeas is the centuries-old remedy for challenging wrongful restraints on personal liberty—or, as William Blackstone called it, “the great and efficacious writ in all manner of illegal confinement.” It is in cases of reviewing the legality of executive restraints on liberty that the writ’s “protections have always been strongest.” Habeas challenges under the AEA date back to the War of 1812 to determine, for example, whether individuals are properly classified as alien enemies.

While habeas has long been a vital backstop for challenging the executive removal of individuals under immigration law, it has never been the sole or exclusive remedy to challenge deportations, at least unless Congress has sought to eliminate other avenues of review (which it has not done here). To the contrary, as Lee Kovarsky has explained, a long line of Supreme Court cases hold that removal orders can be challenged under the Administrative Procedure Act, notwithstanding the availability of habeas. And it would mark a profound misunderstanding—and betrayal—of the “Great Writ’s” legacy were it dangled cynically as a safeguard while excluding other effective remedies and to facilitate lawless executive action.

A Preview of Possible Issues in the AEA Habeas Litigation

While it is impossible to anticipate all the issues that will arise, or how they will be addressed, a few key questions loom for habeas challenges to Trump’s use of the AEA.

Notice and the Opportunity to Be Heard

The Court ruled that “AEA detainees must receive notice … that they are subject to removal under the Act” and that “notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.” While the Court’s instruction is clear, it is directed at an administration that has shown zero desire to provide any process before deporting noncitizens, let alone much concern with following judicial instructions. It is exceedingly unlikely the administration will affirmatively create some nationwide system that provides noncitizens advance notice of their threatened removal and a mechanism for challenging it; to the contrary, the administration can be expected to resist providing people meaningful notice before removing them from the country. Absent action by Congress, it will fall on the courts to hold the administration to account.

And so far, at least, courts are trying to give the Supreme Court’s ruling teeth. In New York, Judge Alvin K. Hellerstein ordered the government to alert anyone targeted for removal within the Southern District of New York and provide them an opportunity to challenge their inclusion under the AEA. And U.S. District Judge Fernando Rodriguez Jr., a Trump appointee in Brownsville, Texas, temporarily blocked the administration from using the AEA to remove any Venezuelans housed at the El Valle Detention Center. The risk, however, is that the administration will seek to avoid and appeal rulings at every turn, forcing the litigants and courts to play a constant game of whack-a-mole to ensure people receive basic due process before being deported.

Class Relief

One of the most effective procedural protections against such exploitation by the administration is class-wide relief. Judge Boasberg, recall, had provisionally certified a class under the AEA. Class actions in habeas have been used for decades and represent “an important method for bringing structural reform challenges to immigration detention.” In two recent cases—Jennings v. Rodriguez and Nielsen v. Preap—the Supreme Court considered some possible issues that could arise under Rule 23 of the Federal Rules of Civil Procedure (which governs class actions) for immigration detainees seeking class-wide relief. (In Jennings, for example, the Court questioned whether a class action would continue to be an appropriate vehicle in that case if the lower court were to determine on remand that some detainees were not entitled to bond hearings as a constitutional matter.) The Supreme Court, however, has not found any bar to bringing class actions through habeas. Thus, to the extent issues fall within the parameters of class actions—for example, on common questions like providing adequate notice to detainees and the legality of the AEA proclamation itself—class actions in habeas should be permitted. Doing so would further both the command of the Federal Rules of Civil Procedure that its rules should be construed to achieve “just” and “speedy” determinations and the traditional understanding of habeas not as a “static, narrow, formalistic remedy” but rather as a flexible mechanism that should be interpreted “to achieve its grand purpose” of protecting individuals against wrongful deprivations of liberty.

Review Under the AEA

Review under the AEA includes two overarching questions: First, did the Trump administration properly invoke the AEA against the TdA; and second, even if the invocation was proper, does a particular individual fall within its permissible scope. In Ludecke v. Watkins (1948), the Supreme Court’s most significant prior treatment of the AEA, the Court rejected a challenge by a German alien to his deportation, ruling (5-4) that despite Germany’s unconditional surrender and the cessation of actual hostilities, it was up to the political branches to determine when the war had ceased, thereby terminating the president’s removal authority under the statute. Ludecke did not rule that interpretation of the AEA is a nonjusticiable political question; rather, Ludecke stands for the more limited proposition that the determination of when a declared war has ended rests with the political branches. Thus, contrary to the government’s argument, whether the TdA was properly designated under the AEA is not beyond judicial review, as the Supreme Court’s decision in Trump v. J.G.G appears to recognize. While the Court stated that the AEA may “largely” preclude judicial review, it indicated  this review would still encompass important questions like interpretation of the act’s scope.

In addressing  the act’s scope, it bears noting that, unlike in Ludecke, President Trump’s proclamation does not involve a declared war against another country—the only prong of the AEA that has ever been invoked. Instead, Trump is relying on the AEA’s other prong—an “invasion or predatory incursion” against the United States by a foreign nation or government. The administration cites the TdA’s “irregular warfare” through such means as “drug trafficking” and “mass illegal migration to the United States” as well as the gang’s “close alignment” and “affiliation” with the Venezuelan government.

But the United States is not engaged in an armed conflict against Venezuela or the TdA under any accepted definition of that term. Judge Karen Henderson underscored in the D.C. Circuit ruling that terms like “invasion” and “incursion” have traditionally been understood as having a military sense, rather than encompassing migration. As Ilya Somin has observed, allowing the president to expand the AEA beyond the confines of an armed conflict—and to treat migration and drug smuggling as an “invasion” triggering sweeping executive removal power throughout the United States—would pose profound concerns for individual liberty and the separation of powers. Indeed, given the Supreme Court’s recent major questions doctrine decisions, courts may wonder whether a matter of such “vast … political significance” should be decided by the executive branch absent clearer instruction from Congress.

The second question is whether a particular detainee is a member of the TdA, assuming the proclamation’s classification of that group is valid. Courts have historically adjudicated whether a particular person falls within the definition of covered aliens under the AEA—that is, “natives, citizens, denizens, or subjects” (over the age of 14)—of countries with which the U.S. is at war., As Steve Vladeck has noted, courts adjudicated “hundreds of cases” during World Wars I and II addressing these terms. Determining whether a person is a “member” of the TdA—a loosely defined criminal organization—involves a much greater risk of error than prior uses of the AEA. Indeed, the administration has been using a checklist of “unreliable indicators” to decide which Venezuelans are members of the TdA, and numerous mistakes have already been made. To take one of many examples of just how shoddy the process is, Andry Hernandez Romero, a makeup artist, was flagged as TdA by a fired cop who had been on his county’s Brady/Giglio list because of credibility problems. The current proclamation thus warrants more robust procedural protections and more searching judicial review under the Mathews v. Eldridge due process balancing test, especially given the draconian consequences of error—indefinite and potentially permanent banishment in a Salvadoran prison.

Other Limits on Transfers

The AEA was enacted two-plus centuries ago, long before the rise of modern federal immigration law and, importantly, before Congress’s enactment of statutes implementing U.S. obligations under international refugee and human rights treaties that prevent the removal of individuals to countries where they face a risk of persecution, torture, or other cruel, inhumane, and degrading treatment.

One question courts will address is how these later-in-time statutes and their non-refoulement requirement modify the AEA. In a decision notable for its potential relevance here, the D.C. Circuit previously concluded in Huisha-Huisha v. Mayorkas that while the first Trump administration could deport asylum-seekers pursuant to a broad grant of public health authority (invoked amid the coronavirus pandemic), it could not remove them to a place where they faced a risk of persecution or torture—a case Judge Boasberg called “on all fours” with the AEA challenge. Habeas corpus proceedings, as Justice Brett Kavanaugh properly recognized in his concurrence in Trump v. J.G.G., “have long been used” to bring transfer challenges; Kavanagh noted, for example, the use of habeas proceedings not only in extradition cases but also by wartime detainees at Guantanamo (although close observers will recall that Kavanaugh, while on the D.C. Circuit, previously rejected transfer challenges by wartime prisoners outside the United States in a string of cases). Justice Kavanaugh also cited the celebrated Habeas Corpus Act of 1679, which underscores the deeply rooted nature of the writ’s protections against illegal transfers. As Amanda Tyler has observed, the 1679 act outlawed moving prisoners to avoid the writ’s reach—a practice that also led to the commencement of impeachment proceedings against the Earl of Clarendon. The administration’s use of the AEA to remove prisoners from the United States—and to do so, moreover, outside wartime—thus animates a core purpose of the writ.

Remedy for Unlawful Transfer

Another critical question surrounds the remedy for those unlawfully deported under the AEA—both to date and going forward. In Noem v. Abrego Garcia, the Supreme Court last week rejected the Trump administration’s assertion that a federal judge had no power to order it to seek the return of a Maryland man removed to El Salvador without any legal process and in error. In a unanimous opinion, the Court ruled that District Judge Paula Xinis had properly ordered the government to “facilitate” the detainee’s “release from custody in El Salvador and to ensure that this case is handled as it would have been had he not been improperly sent to El Salvador.” The Court did, however, remand to the district court to clarify what it meant in its order by “effectuate” and to do so in a way that shows “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.” At the same time, the Court said the government must “be prepared to share what it can concerning the steps it has taken and the prospect of further steps.” Although Abrego Garcia does not involve the AEA, it has significant implications for future habeas litigation under the act as well as for other cases.

To the extent the Court confirmed that a federal judge has the power to order the government to facilitate the return of a person it has wrongly deported, the decision is correct and unremarkable. The U.S. government routinely seeks to return migrants who have been improperly removed. While a court may have no power to issue orders to a foreign government, it unquestionably has authority to issue orders to U.S. officials regarding persons in its custody or control. And even though Abrego Garcia may no longer be in U.S. physical custody, he appears at least arguably in U.S. constructive custody given that, among other things, he is being held in El Salvador at the request of the United States, which has “outsourced” part of the U.S. prison system there. On remand, however, the Trump administration is refusing to provide even the most basic information about any U.S. efforts to seek Abrego Garcia’s return while also asserting that federal courts have no power to compel the executive branch to engage with the Salvadoran government over Abrego Garcia’s fate.

El Salvador President Nayib Bukele, meanwhile, told reporters during a meeting with President Trump on Monday that he would not return Abrego Garcia to the United States, thus further raising the stakes. The Trump administration’s position thus continues to pose challenges to a federal court’s power both to get basic answers to its questions about a person wrongfully deported from the country and to require the executive to take meaningful steps to bring them back. These issues may soon be back before the Supreme Court, which will have to confront the limits of executive discretion and whether it is basically a free pass for the executive to banish people from the United States without consequence. Habeas review of deportations, in short, will mean far less if there are no effective remedies for circumventing it.

It is too early to determine the full impact of the Supreme Court’s ruling in Trump v. J.G.G.. But a valid concern is that, despite the Court’s statement that it was only addressing the vehicle by which challenges to the AEA could be brought, it has provided an opportunity for the administration to exploit.

Rumsfeld v. Padilla, the 2004 case that presented perhaps the most dramatic claim of executive power in the “war on terrorism,” offers a cautionary tale. Padilla  raised the question of whether the president could indefinitely detain in military custody without trial an American citizen seized in the United States on suspicion of terrorism. But rather than deciding this critical question, the Court avoided it, ruling instead that Padilla had brought his case in the wrong court: Even though Padilla had been declared an “enemy combatant” while in the Southern District of New York, his habeas petition had to be brought against his immediate custodian—and thus refiled in the District of South Carolina, where he was being held incommunicado in a naval brig. (The Supreme Court would duck the issue again two years later after the do-over litigation had reached the Court again by denying Padilla’s certiorari petition after the Bush administration charged him with a federal crime and sought to return him to civilian custody at the eleventh hour, in a patent attempt to avoid Supreme Court review.)

The consequences of the Court’s non-decision decision have reverberated far beyond Padilla itself. Although the Court cautioned that the “immediate custodian rule … does not apply when a habeas petitioner challenges something other than his present physical confinement” and, moreover, warned against manipulating a prisoner’s transfer or hiding from a prisoner’s lawyer where it has taken him, the government has repeatedly invoked the Padilla rule precisely to achieve these ends. In one recent and troubling example, the Trump administration repeatedly sought to exploit the “immediate custodian rule” to seize legal permanent residents and students from across the country and transfer them thousands of miles from their homes, in secret, to federal detention facilities within its preferred forum in the Fifth Circuit, where it anticipates little, if any, judicial pushback.

Despite its venerated place in the Anglo-American tradition, habeas has been weakened over time by limitations on prisoners’ rights and the mass incarceration of immigrants. After 9/11, the writ provided an important bulwark against secret detention and torture at Guantanamo, leading to three Supreme Court decisions rebuking claims of unchecked power by the executive. But even there, the writ’s protections faded over time, as a series of decisions limited its impact and accorded unwarranted deference to the executive. Americans, meanwhile,may have become complacent with a default presumption of liberty and the false sense that only those easily defined as “other” are at risk of losing it. But now that the threat is here—as Justice Sonia Sotomayor noted in her dissent, the implications of the government’s position are that “United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress”—judges may be more inclined to take seriously the protections afforded by habeas and its centrality to the scheme of ordered liberty in America. And the Supreme Court, for its part, should be less concerned with avoiding a direct confrontation with the president when habeas challenges to the AEA come back around.

– Jonathan Hafetz is Professor of Law at Seton Hall University School of Law. Published courtesy of Lawfare.