The latest legal developments in Trump's effort to use the Alien Enemies Act to disappear Venezuelans

In the past week or so, more precise contours have emerged in the legal contests over the lawfulness of the Trump regime's invocation of the Alien Enemies Act and the mechanics of the regime's deportation Venezuelans to CECOT, a prison camp in El Salvador. One way or another these fights will culminate in the U.S. Supreme Court.

Three issues have gained prominence:

1. whether detained Venezuelans may have their habeas petitions handled via class action
2. whether the Alien Enemies Act (AEA) permits Trump to declare Tren de Aragua (TdA) a foreign invasionary force
3. what steps constitute due process for removal of alleged TdA members under the AEA

Courts have already taken positions on each of these, clearly splitting over the first two and just beginning to address the third. While I have firm views as to the proper legal answers to questions (1) and (2), the fact and ways that federal district courts are disagreeing over them highlights that the Supreme Court might side with the arguments I reject. My purpose in this post is to give a deeper sense of the issues and to sketch the positions courts have taken thus far.

Recall that the Supreme Court vacated one early temporary restraining order, issued by Judge Boasberg, which certified a nationwide class of Venezuelans identified by Trump's AEA proclamation and prevented their removal from the U.S. In J.G.G. v. Trump, the Court held that challenges to removal under the AEA had to be brought as habeas corpus actions. Such petitions must be brought in the geographical location where a prisoner is held. The Trump DHS was and is holding Venezuelans in different places throughout the U.S. So, no one federal court could hear all of their habeas petitions. This eliminated the possibility of a nation-wide class action. It left open the possibility of class actions on a federal district by federal district basis.

Habeas corpus law is complicated, both procedurally and substantively. Without getting too in the weeds, here's what's important to know. Practically speaking, most Venezuelan detainees have no way to know that they have a right to file habeas corpus petitions and no way to seek or consult a lawyer. Because a class action proceeds by naming specific people as class representatives and then defining the entire class in terms of how unidentified or even unidentifiable people are situated, class actions on behalf of Venezuelans detained per Trump's AEA proclamation can vindicate the habeas rights of even those Venezuelans who do not file their own individual habeas petitions. A class action can even cover people not yet detained per Trump's proclamation but who may be in the future. Accordingly, the ACLU, the lead counsel in many of the habeas actions that have been filed on behalf of Venezuelans detained throughout the country, has sought to bring the petitions on behalf of classes of detainees.

Whether individual legal claims are eligible for aggregation is a matter of law. Generally, any person who wants to file for legal relief - whether a habeas petition or an action for money damages - must bring their own legal action. But under some circumstances the law permits individual actions to be treated all together in a class action. Ordinarily, this is determined exclusively by Rule 23 of the Federal Rules of Civil Procedure. Some courts have held that for habeas petitions a class can be recognized even if it does not precisely meet Rule 23 requirements, so long as equity requires aggregate treatment of the individual claims. Either way, courts must decide whether to permit class actions on behalf of Venezuelans detained per the AEA. Practically speaking, this issue is going to determine, for almost all the detainees, whether they have a meaningful opportunity to legally contest their deportations to CECOT.

Unsurprisingly, the Trump regime opposes class certification for the Venezeulan detainees. They've lost in the Southern District of Texas, the Southern District of New York , and the Western District of Pennsylvania. They've won in the Northern District of Texas, though the judge there stayed his order denying class certification because of a still operative Supreme Court order prohibiting removal of Venezuelans detained in that federal district.

Based on the opinions from the district courts, it is clear that they disagree over whether habeas corpus petitions can ever qualify for class treatment; if they can, whether Rule 23 strictly governs or whether equitable considerations can relax Rule 23; and whether the Venezuelans are sufficiently factually and legally similarly situated to have their claims aggregated. In short, there is disagreement over every facet of class certification for Venezuelans detained per Trump's AEA proclamation.

The Alien Enemies Act reads, in relevant part:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies [emphasis added].

Seemingly, a President cannot make the contemplated public proclamation unless the statutory prerequisites obtain. If there isn't a declared war or an (attempted) invasion by foreign nation or government, there isn't anything for the President to proclaim.

The Trump regime argues that even if that is so, federal courts may not decide whether the statutory preconditions are satisfied, because this encroaches upon foreign affairs and national security prerogatives exclusive to the executive branch. Attorneys for detained Venezuelans disagree, arguing that at the very least the judicial branch as the authority and responsibility for interpreting the meaning of phrases like "declared war," "invasion or predatory incursion," and "foreign nation or government." Even if courts must defer to executive branch applications of these phrases to particular factual circumstances, courts in the first instance have the right and duty to assess the meaning of the phrases; thus whether, at the outer limit, they could possibly apply. So far, every court that has addressed the question of whether it may interpret the meaning of the terms in the AEA has concluded it may.

But, courts have split as to whether the AEA's terms can encompass TdA and its conduct. Judges in the Southern District of Texas and the Southern District of New York have held that terms like foreign state and government, invasion, and predatory incursion do not, as a matter of plain meaning, extend to tdA and its transnational criminal activities. A judge in the Western District of Pennsylvania disagrees, arguing that foreign terrorist organizations - a technical denomination that the Secretary of State may use - can conduct predatory incursions within the meaning of the term as it is used in the AEA. This judge concludes that a classification of the TdA as conducting a predatory incursion into the U.S. is a permissible application of the language of the AEA.

These disagreements over the meaning of the AEA and its application to TdA by Trump turn on different approaches to statutory interpretation generally and to the interpretation of the AEA specifically.

Courts that have decided that Trump's AEA proclamation about TdA is invalid have not had reason to address the question of whether the Trump administration is providing sufficient notice and opportunity for hearing. If the proclamation is unlawful, no amount of process can justify removing anybody from the country under its auspices. But at least one court, in the Western District of Pennsylvania, has upheld the validity of the proclamation, bringing the judge, Stephanie Haines, to consider how much notice of removal and opportunity for hearing a detainee must have to accord with the Supreme Court's decision stating that anybody subject to removal under an AEA proclamation must have an "actual" opportunity to seek habeas relief before deportation. The Trump regime has been arguing in all of the AEA cases that somewhere between twelve and thirty-six hours of notice is sufficient. Haines roundly rejects this. She holds that there must be at least twenty-one days' notice and opportunity to be heard. She writes:

The Court reaches this finding for three reasons. First, the Court is intimately familiar with ICE removal proceedings [because the] Court [considers] myriad habeas petitions challenging removals on an annual basis. In light of that familiarity, the Court knows that individuals in ICE custody are frequently moved, counsel for such individuals may have a difficult time speaking with them, and such individuals cannot realistically file for habeas relief within a matter of hours. Second, the Court is concerned that, if it does not provide sufficient notice and opportunity to be heard, individuals who are not in fact subject to the AEA and the Proclamation may be errantly removed from this country. And third, the Court finds that twenty-one (21) days' notice does not unduly burden the government in this context.

Haines also takes up the issue of the content a notice of removal must include if it is to pass legal muster. The Trump regime has been using forms written only in English and that simply say that the recipient is subject to removal from the U.S. For people who only speak Spanish and who have no idea that they may contest the removal, such forms do not provide meaningful notice. Haines holds that notice must "clearly articulate that the individual detainee is subject to removal under the Proclamation and the Act." She requires that notice must given in English and Spanish and that translators must be provided in any hearings. Haines does not address whether the notice must specifically inform the recipient of a right to contest his/her/their removal.

Should other courts, including ultimately the Supreme Court, reach the issue of satisfactory notice and hearing, they will reach their own conclusions as to the amount of time given and the content of the notice.

I've covered a fair amount of ground in this post, with the aim of showing how many ways courts can block or enable the Trump regime's program of sending Venezuelans detained per the AEA proclamation out of the country. It is unclear how quickly the legal issues will be resolved. Ordinarily, the various federal district court rulings would be appealed to the relevant circuit courts and then those court rulings would be appealed to the U.S. Supreme Court - a process that would take at least weeks and more usually months or even years. But in this situation, the U.S. Supreme Court might truncate the typical timeline. Recall that the Court issued an order temporarily forbidding removal of Venezuelan detainees in the Northern District of Texas. The Court did this because the federal district court judge there dragged his feet, refusing to rule on the need for a temporary restraining order. The Court said its order would be in effect until further order from it. This means that the Supreme Court retained jurisdiction over the case. It could choose to schedule arguments before it on the questions of law the case raises. This would certainly include the issue of class certification and might also extend to the question of what constitutes meaningful notice and opportunity to be heard. Far less likely – though not impossible – is that the Supreme Court would use decisions by the Northern District of Texas to reach the question of the lawfulness of Trump's AEA proclamation regarding TdA.

Meanwhile, the Trump regime is doing its utmost to remove detained Venezuelans before any of the issues I've covered are resolved. The regime is shipping as many Venezuelans as possible from other districts to the Northern District of Texas, as that is where current protections from removal are flimsiest. The Trump regime is also attempting to reclassify most of the Venezuelans as deportable under the Immigration and Nationality Act or other legal provisions. If they succeed in this and they deport all or most of the Venezuelans currently held, courts may decide that questions about the Trump AEA proclamation are moot - because nobody's fate will then turn on being removed under its auspices.

Finally, none of the above even touches the contempt of court proceedings that have already arisen from the Trump regime's apparent flouting of specific court orders issued in cases involving people already sent to CECOT.