Alien Enemies Act

Last week, a resolution calling for the impeachment of Judge James Boasberg, who is hearing the challenge to Trump’s authority under the Alien Enemies Act (AEA), was filed in the House of Representatives by Congressmen Gill, Crane, Collins, Carter, Moore, and Clyde. They accuse the Judge of “abuse of power.”

The resolution claims, as has the Trump administration in court, that the President has “sole and unreviewable discretion” to invoke the AEA and “to determine whether an invasion has taken place” that would merit removal of alien enemies from the United States. The resolution calls for the Judge’s impeachment because he “used the powers of his position to engage in actions that overstep his judicial authority. By making a political decision outside the scope of his judicial duties, he compromised the impartiality of our judicial system and created a constitutional crisis.”

Specifically, the resolution claims that courts can’t second guess a president's determination that we’ve been invaded for purposes of the AEA. They maintain that would be tantamount to interfering with the president’s political judgments, an area courts should not delve into. They refer to a 1948 Supreme Court case, Ludecke v. Watkins, which they claim establishes a “binding precedent” that prohibits courts from interfering in a case like this, “for which judges have neither technical competence nor official responsibility.”

The claims made in the impeachment resolution are a more political distillation of the arguments the government raised before a three-judge appellate panel consisting of Judges Henderson, Millett, and Walker in the United States Court of Appeals for the D.C. Circuit Monday afternoon. The government wants to get out from under the temporary restraining order (TRO) Judge Boasberg entered that prohibits the government from continuing to remove people it claims are members of the Tren de Aragua gang. Their argument isn’t about whether the government violated the TRO, although they maintain they haven’t, but rather about whether the Judge had the jurisdiction to impose it in the first place.

The government has three basic arguments:

• Even though TROs aren’t usually appealable, the one entered by Judge Boasberg is because the court is interfering with presidential powers.

• The court lacked jurisdiction to enter the TRO in the first place, because the president’s AEA proclamation can’t be reviewed by the courts. This argument is problematic for the government. It’s based on Ludecke, where the Supreme Court concluded the president’s finding we were still at war several years after combat in World War II ended couldn’t be reviewed by the courts. However, SCOTUS also acknowledged courts can review whether an individual qualifies under a president’s AEA proclamation as “an alien enemy” who is deportable. Much of the thrust of the arguments made by the plaintiffs—the people the government has or seeks to deport—were centered here.

• The core of the plaintiffs’ arguments is a request for habeas corpus (a process for challenging the legality of a person’s detention or imprisonment). Habeas actions must be brought where the plaintiff is kept in custody. Since the five plaintiffs the case started with (there is now a TRO that applies to a larger class of an unknown number of people in the same situation as the original plaintiffs) were all housed in Texas, the plaintiffs’ lawsuit is improper because it was filed in Washington D.C. The plaintiffs rejected the idea the case was grounded in habeas, pointed to the fact that the government has refused to tell them how many, let alone where, the people in their class are, and identified D.C. as a more convenient forum because key defendants like the attorney general are located there.

After a hearing that went on for almost twice as long as anticipated, it wasn’t entirely clear where the panel would land. It’s important to understand the state of play: Judge Boasberg’s TRO only applies to people being deported solely under the Alien Enemies Act. People who have pre-existing orders of deportation, for instance, can continue to be deported.

Before the hearing started, Judge Boasberg rejected the administration’s request that he rescind the TRO. The Judge noted that Venezuelans slated for deportation under the AEA are likely to win because of the total denial of due process that’s been in place before they are deported. At least at the TRO stage, this seems like the position the panel could land on, unless two judges agree the case couldn’t be brought in the District of Columbia.

It was clear during oral argument that the government’s lawyer wanted to focus on the fact that the five named plaintiffs were able to file a lawsuit. What he danced around were questions about the people on the planes and whether they had the same opportunity. He made a woefully disingenuous argument in an effort to dodge the fact that they’d had little if any notice they were about to be deported and imprisoned and no access to lawyers to file suit in Texas before that happened to them.

Judge Patricia Millett concluded, “Nazis got better treatment.” She said that at least suspected Nazis had hearing boards before they were deported.

This case is about the way the government is treating a very narrow slice of people it seeks to deport, trying to use presidential authority meant for wartime against people it claims—apparently in a number of cases wrongfully so—are gang members, a process that seems at odds with a law that permits presidents to deport alien enemies when we are at war.

If these people have committed crimes, they can be prosecuted. If they’ve engaged in conduct that makes them deportable, they can be deported. But the lawsuit is about the principle that they can’t be sent to a Salvadoran prison without due process, no matter who they are and what they’ve done. Our systems go to great lengths, sometimes protecting people whose views we vehemently disagree with or giving due process rights to violent criminals, in order to ensure that all of us have those rights available to us when we need them. That’s what’s at stake here; this is about our rights too.

The plaintiffs wrote about it eloquently in their brief to the Court of Appeals, providing a common-sense summation of what the Trump administration is doing. If a president can single out any group as qualifying enemies under the AEA, and the courts can’t review that decision, then any one of us can be sent off to a foreign prison.

What’s at stake here is American democracy. It’s clear we’re going to have to fight for it again and again during this administration.

If people have no opportunity to contest the legality of actions the government takes against them, if grotesque injustice is being layered on top of grotesque injustice by our government in our name, it becomes increasingly difficult to call ourselves a democracy. So don’t be misled by the labels the Trump administration applies to people whose rights it is intent on violating: gang members, violent criminals. These people could be anyone. We just don’t know because they weren’t given due process and a hearing. What’s certain is that if the administration gets away with it, they’ll do it again, and it could happen to anyone. That’s why we need to draw the line here and now and firmly.

We’re in this together,

Joyce

If you haven’t already, I’d love it if you would preorder my book, Giving Up is Unforgivable.