On Monday night, a 5 to 4 majority of the Supreme Court not only dissolved the controversial temporary restraining orders issued by Judge James Boasberg of the U.S. District Court for the District of Columbia, but the high court, in essence, took the case away from him.
So much for any pending action by Boasberg to hold the government in contempt for deporting to El Salvador the gangbangers of Tren de Aragua (TdA), a vicious Venezuelan drug cartel that has been designated as a foreign terrorist organization.
On March 14, President Donald Trump issued Proclamation No. 10903 invoking the Alien Enemies Act of 1798 to detain and remove Venezuelan nationals who are members of TdA.
The Alien Enemies Act allows removal from the United States of foreign citizens of a nation with which the U.S. has a “declared war” or that threatens or perpetrates an “invasion or predatory incursion” of this country. This challenge was brought by five detained individuals and a class of all others in U.S. custody who are in that category.
Boasberg issued a temporary restraining order preventing the removal of the five named individuals and another restraining order preventing the removal of the class.
In a per curium decision (a decision that doesn’t reveal who wrote it), Chief Justice John Roberts, and Justices Brett Kavanaugh, Neil Gorsuch, Samuel Alito, and Clarence Thomas vacated those two temporary restraining orders issued by Boasberg.
This lawsuit was filed under the Administrative Procedure Act late on a Friday night by the ACLU. Boasberg held a hearing the next day when the military flights, taking the detainees to a prison in El Salvador, were already in the air.
The Justice Department asserted that Boasberg’s orders were issued too late to be given effect after the aliens were already out of the country and en route to El Salvador. But the judge was apparently considering contempt charges and other possible penalties against administration officials for supposedly disobeying his orders to turn the planes around and fly back to the United States.
After a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in a split opinion refused to stay Boasberg’s orders, Trump’s Justice Department filed an emergency appeal with the U.S. Supreme Court. The court did not reach the underlying substantive legal issues about the meaning and application of the Alien Enemies Act, but dissolved the restraining orders on jurisdictional grounds.
The court pointed to a 1948 case, Ludecke v. Watkins, which involved the removal of a German alien under the Alien Enemies Act. Under the holding of that case, said the court, the act is a statute that largely “precludes judicial review.”
As a result, individuals detained under the Alien Enemies Act must bring their own legal actions asking for a writ of habeas corpus challenging the legality of their detention. Habeas claims, the court said, must be brought in the judicial district where the aliens are detained; in this case, that means Texas.
The ACLU chose not to follow that approach, but instead opted to challenge the application of Trump’s action to all of these aliens. Indeed, it dropped the only cognizable claim when it dismissed the challengers’ habeas claims. As a result, Boasberg lacked jurisdiction over this case because it was not properly filed in his district.
That means that Boasberg has no power to issue any more orders in this case and has no power to hold the administration in contempt or impose any other penalties for supposedly disobeying his orders that should never have been issued in the first place.
Moreover, because habeas actions challenge the actual detention of actual individuals, they have to be individually asserted. No judge can certify a “class action” for a group in a habeas action.
Any Venezuelan members of TdA who want to contest the use of the Alien Enemies Act against them will each have to file a habeas action in the Lone Star State or wherever else they are being held.
The Supreme Court did specify two due process elements in this and similar cases. The court said that the government must give the plaintiffs and any other aliens targeted under the Alien Enemies Act notice “that they are subject to removal under the Act.” And the government must do so “within a reasonable time and in such manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
To no one’s surprise, Justice Sonia Sotomayor dissented, joined in full by Justices Elena Kagan and Ketanji Brown Jackson and in part by Amy Coney Barrett.
Sotomayor wrote that her colleagues’ “decision to intervene in this litigation is as inexplicable as it is dangerous.” Sotomayor lambasted the president for invoking the Alien Enemies Act, noting that there is no declared war with TdA and that it is not a “foreign nation.”
That, of course, ignores the fact that Trump based his proclamation on the second provision of the act that refers not to a state of war, but to an “invasion or predatory incursion.” And she dismissed the extensive language in the proclamation describing TdA as an agent of the Venezuelan government, a narco-terrorist regime that is a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States” through TdA.
Both Sotomayor and Kagan criticized the majority for deciding this issue without first going through the judicial process of full briefing and oral argument. Yet that is exactly what Boasberg did, attempting to block implementation of Trump’s Alien Enemies Act proclamation and ordering an extraordinary remedy almost immediately without going through any of those steps.
Despite the Supreme Court’s holding, and in what can only be termed as an act of defiance, Boasberg issued an order on Tuesday telling the ACLU to inform him by April 16 whether it still has a basis to proceed on its demand for a preliminary injunction in his court.
That seems remarkable, given the fact that the Supreme Court told him he does not have jurisdiction over this matter and that the only possible remedy for the ACLU’s clients are via habeas petitions filed in Texas, where they are detained.
The bottom line here is that there is no longer a case in place where a judge can try to order the Trump administration to engage in discussions with a foreign government to return all of the dangerous TdA gang members who are no longer in this country, and no longer in our communities and neighborhoods.
Individuals who are detained as suspected TdA members and who want to challenge their detention must file habeas petitions in the jurisdiction where they are located if they want to try to fight their deportation.
Good luck with that. The view of Texas judges may be a bit more skeptical of such claims than judges in the District of Columbia.
