A federal appeals court in Washington, D.C. has rejected Donald Trump’s attempt to throw out a lower-court ruling that has blocked the administration from deporting immigrants under the Alien Enemies Act.
Wednesday’s 2-1 decision — written by appellate Judge Karen Henderson, who was appointed by George H.W. Bush — states 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,” states Henderson’s ruling.
Trump “plucks the third-order usage” of the word “invasion” to justify summary deportations, she wrote.
Immigration alone also does not constitute a “predatory incursion,” the ruling states.
The phrase refers to a “form of hostilities against the United States by another nation-state, a form of attack short of war,” according to Henderson. “Migration alone did not suffice.”
The “government argues that we may not even assess the lawfulness of its conduct,” Henderson adds. “In its view, whether there is an invasion or predatory incursion — or whether an organization qualifies as a foreign nation or government — is a political question unreviewable by the courts.”
In a concurring opinion, Barack Obama-appointed 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.
Trump invoked the Alien Enemies Act for the fourth time in U.S. history as three planes with dozens of Venezuelans were sent to El Salvador’s notorious prison, where they do not have access to legal counsel and face the prospect of indefinite detention.
The flights were on their way to El Salvador on March 15 when District Judge James Boasberg ordered the administration to turn the planes around. He has pressed officials to answer a series of questions about the operation to determine whether they intentionally defied his court orders.
Trump’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 the administration admitted in court filings that “many” of the people sent to El Salvador did 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.
Trump-appointed appellate judge Justin Walker dissented from the two other members of the three-judge panel.
Immigrants targeted for removal — represented by the ACLU, which sued to block their imminent deportation on what would have been the El Salvador flights — should have sued in Texas, where they were detained, according to Walker.
“The Government has also shown that the district court’s orders threaten irreparable harm to delicate negotiations with foreign powers on matters concerning national security,” he wrote. “And that harm, plus the asserted public interest in swiftly removing dangerous aliens, outweighs the Plaintiffs’ desire to file a suit.”
Wednesday’s ruling comes after a nearly two-hour appeals court hearing, where lawyers for the government called Boasberg’s temporary restraining order an “utterly unprecedented” “intrusion” into the president’s authority.
The administration told Boasberg this week that attorneys will not answer his questions about the flights, citing a “state secrets” privilege that allows the executive branch to block evidence in court over national security concerns.
That move escalates what has become a growing conflict between Trump and the judiciary in a case that legal experts are warning could send the country plummeting into a constitutional crisis.
