150. The State of Play in the Alien Enemy Act Litigation

A series of outwardly inconsistent developments in different courts in the Alien Enemy Act cases underscores the difficulties that litigants challenging Trump policies face without nationwide relief.

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I wanted to write this morning for two related reasons—because there have been a flurry of developments in lower courts (and in the Supreme Court) in the Alien Enemy Act cases that have been hard to keep on top of but are worth following; and because those developments indirectly underscore a broader point about the chaos and complexities that can (and, in this administration, surely will) arise from requiring challenges to nationwide policies to proceed on a district-by-district—or even litigant-by-litigant— basis.

With the Supreme Court set to hear oral argument tomorrow on whether to narrow (or even eliminate) “nationwide” injunctions, the Alien Enemy Act cases continue to provide powerful reminders of the very real costs of such a move—costs that are exacerbated by an executive branch that will seize upon every inch of wiggle room that the federal courts give them to carry out even those policies that are, like the attempt to limit birthright citizenship, patently lawless. Simply put, if the Court forecloses nationwide relief across the board, then every single nationwide challenge to Trump policies will end up looking like the Alien Enemy Act cases—only, for reasons elaborated upon below, with even more chaos. That result will benefit no one other than the Trump administration—and it risks kneecapping the federal courts at a moment in which they appear to be the only institution in a position to meaningfully check, on a systematic basis, the executive branch’s alleged lawlessness.

Round I: March 15—April 7

To quickly recap how we got here, on March 15, President Trump issued a proclamation purporting to invoke the Alien Enemy Act of 1798 (AEA) as a basis for arresting, detaining, and removing any individuals who are: (1) Venezuelan nationals; (2) not LPRs (lawful permanent residents of the United States); (3) more than 14 years old; and (4) members of Tren de Aragua—which the proclamation claims to be effectively a front for the Maduro regime (a claim with which 17 of the United States’ 18 intelligence agencies disagree). The goal of the enterprise, it’s now clear, was to use the AEA as a way to get around the individualized judicial review that is otherwise required in removal proceedings—even though the text and history of the AEA also demand individualized review, as I explained in my earlier post on the subject.

That same day, in a lawsuit brought by the ACLU and captioned J.G.G. v. Trump, Chief Judge Boasberg in the D.C. district court issued a pair of temporary restraining orders (TROs). The first barred the government from removing the five named plaintiffs under the AEA; the second, issued later that evening, identified a “putative class” of anyone subject to the AEA anywhere in the country, and barred the government from removing them, either. And although the government appears to have immediately violated this second order (by not turning around planes that were already in the air), it subsequently honored Boasberg’s ruling even as it sought to appeal it.

On March 26, by a 2-1 vote, the D.C. Circuit denied the government’s motions to stay both of Boasberg’s TROs. (All three judges wrote their own opinions; the Henderson and Millett opinions remain, in my view, the most thorough analyses provided in any of these cases to date.) The government then asked the Supreme Court for the same relief.

On April 7, by a 5-4 vote, the Supreme Court granted the government’s application—and vacated Boasberg’s TROs. As I explained in more detail at the time, the Court held that nationwide relief under the Administrative Procedure Act was not available in the AEA cases—because the challengers had to proceed through habeas petitions, and those petitions had to be brought in the district(s) in which the challengers were being held. But the Court unanimously insisted that “AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The 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.” Thus, the Court purported to split the difference—channeling the AEA cases into district-by-district lawsuits; but mandating a meaningful amount of notice and judicial process before any AEA removals could be effectuated.

Round II: April 7—April 19

The night of the Supreme Court’s J.G.G. ruling, I called it disturbingly myopic—for three reasons. First, the ruling only complicated the cases of individuals who had already been removed to El Salvador under the AEA (who were part of the putative class in J.G.G., and obviously could not file in the district in which they were detained). Second, the ruling necessarily channeled many of these cases into district courts in Texas (and the Fifth Circuit)—courts that, I suspected, would be far more sympathetic to at least some of the government’s arguments. And third, and most technically, the ruling presupposed that habeas relief would be equally effective in challenging the President’s invocation of the AEA both procedurally (with district-wide classes) and substantively—points about which I was … skeptical. Alas, all three of those concerns were quickly borne out.

Five district courts—the District of Colorado (in D.B.U. v. Trump); the Southern District of New York (in G.F.F. v. Trump); the Western District of Pennsylvania (in A.S.R. v. Trump); and the Southern and Western Districts of Texas (in J.A.V. v. Trump and M.A.P.S. v. Garite, respectively)—have now issued TROs blocking AEA removals for a class of anyone detained within their district. But one district court didn’t move as quickly. In a case that began as A.A.R.P. v. Trump, but is now captioned W.M.M. v. Trump, the Northern District of Texas initially denied a TRO, and then did not rule immediately when the ACLU renewed its request amidst media reports that the government was imminently planning to remove individuals detained at the Bluebonnet detention facility outside of Abilene. That impelled the Supreme Court to step in, just before 1 a.m. on Saturday, April 19, and issue its own temporary block of any AEA removals of members of “the putative class” (i.e., anyone subject to the AEA proclamation and being held in the Northern District of Texas) “until further order of this Court.” (I wrote about the Court’s ruling here; and Justice Alito’s dissent here.)

Thus, it took just 12 days for the uncertainty surrounding district-by-district litigation to precipitate another emergency warranting the Supreme Court’s intervention—one that presumably could’ve been avoided had Chief Judge Boasberg’s nationwide TRO in J.G.G. been left in place. Meanwhile, at least as of April 19, no court had actually reached the merits of whether President Trump’s invocation of the AEA was even lawful on its face.

Round III: April 19—present

Instead of a blow-by-blow of what’s happened in the ensuing 25 days, I thought it would be most useful to summarize the status quo in each district court as of this morning (May 14).

District of Colorado (D.B.U.): There is currently a district-wide preliminary injunction in place barring the removal under the AEA of anyone detained in the District of Colorado. And in granting the preliminary injunction, Judge Sweeney held that she was likely to conclude on the merits, among other things, that the proclamation was invalid on its face.

Southern District of New York (G.F.F.): There is currently a district-wide preliminary injunction in place barring the removal under the AEA of anyone detained in the Southern District of New York. And in granting the preliminary injunction, Judge Hellerstein held that he was likely to conclude on the merits, among other things, that the proclamation was invalid on its face.

Western District of Pennsylvania (A.S.R.): Here’s where things start getting tricky. Yesterday, Judge Haines granted a preliminary injunction—but only after concluding that the proclamation was valid on its face (deferring to the proclamation’s risible assertion that Tren de Aragua is effectively a front for the Maduro regime), and only to the named plaintiff (who isn’t even in the Western District anymore). The ruling thus allows for removals under the AEA of individuals subject to the proclamation who are detained within the Western District of Pennsylvania (a class that appears to currently be empty), and of the named petitioner only if he receives notice at least 21 days before the date of removal and is given a meaningful opportunity to challenge the factual basis for his removal in court.¹

Southern District of Texas (J.A.V.): This is the first case in which a district court granted permanent relief—with Judge Rodriguez issuing a permanent injunction barring the removal under the AEA of anyone detained in the Southern District of Texas after concluding that the proclamation is invalid on its face.

Western District of Texas (M.A.P.S.): As of yesterday, there is now a district-wide temporary restraining order in place barring the removal under the AEA of anyone detained in the Western District of Texas. Judge Briones’s brief order concluded that the plaintiffs are likely to succeed not just on their procedural claims, but also on their claim that the proclamation is invalid on its face.

Northern District of Texas (A.A.R.P. / W.M.M.): Speaking of messy… Two different things are currently true in the Northern District of Texas:

First, the Supreme Court’s April 19 order is still in effect (more on this in a moment). Thus, there is currently a bar on AEA removals of anyone held in the Northern District of Texas.

Second, last Friday, Judge Hendrix denied class certification—not only expressing doubt that petitioners’ claims could be resolved on a class-wide basis; but expressing doubt as to whether class certification is ever appropriate with respect to habeas petitions (even though, as I noted back on April 7, every court of appeals to reach the issue has sustained it). Judge Hendrix stayed his order, but only because of the Supreme Court’s still-effective order barring all removals from the Northern District of Texas. Thus, the only thing currently preventing AEA removals of individuals held in the Northern District of Texas, including the named plaintiffs in A.A.R.P., is the Supreme Court’s April 19 order.

That order, of course, was only temporary; the ACLU’s emergency application remains pending before the full Court. And there’s now been a remarkable exchange of letters/supplemental briefs in which the government claims that the mere elapsing of time since April 19 should satisfy the J.G.G. notice requirement. The ACLU, in contrast, has pointed out not only that there’s no evidence that notice has been provided (and serious obstacles to confirming whether it has), but also that it is seeking reconsideration of Judge Hendrix’s denial of class certification at least as to the issues common to the class (like the proclamation’s facial validity; the type and length of notice required; etc.).

Thus, the Supreme Court has yet another mess to clean up in the same case—again, one that could’ve been avoided had it left in place Chief Judge Boasberg’s nationwide TRO in J.G.G.

(District of the) District of Columbia² (A.A.R.P. / W.M.M.): And speaking of J.G.G., that case has not gone away. In addition to the ongoing contempt-related proceedings, Chief Judge Boasberg has before him an amended complaint seeking class-wide habeas relief on behalf of the individuals who have already been removed to El Salvador (the Supreme Court has held that D.D.C. is an appropriate venue for individuals held outside the territorial United States). The petitioners’ request for an injunction (and class certification) remains pending as I’m writing this, but it’s been fully briefed since last week.

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In other words, at the moment, there are five federal district courts in which there is district-wide relief barring AEA removals, but 89 in which there is not. And even within those five districts, there are variations as to why the removals are blocked (facial validity and/or due process); by whom (four by district courts; one by the Supreme Court); and to what end (indefinitely? With 21 days’ notice? Etc.).

Meanwhile, the facial question that could make all of this litigation go away (is the proclamation invalid on its face) has been conclusively resolved by only one of those courts (which held that it is); and the preliminary resolutions of the same question have split 3-1 in the same direction. All the while, the government has continued to move at least some immigration detainees from district to district—whether willfully or just coincidentally. And that’s before the appeals of these rulings on the merits have reached any of the courts of appeals—as they seem destined to in at least the Fifth Circuit, if not the Second and Tenth Circuits, as well.

Imagine, instead, if the Supreme Court had left Chief Judge Boasberg’s nationwide TRO in place on April 7. We’d have one, clean vehicle through which to decide the facial validity question (I dare say, it would’ve been decided by now—and well on its way to the Supreme Court for a final decision). There’d be no opportunity for district-by-district manipulation by the government. And, if it turns out that the proclamation really is invalid, we’d be conserving a whole lot of judicial resources, both in the lower courts and in the Supreme Court. Mightn’t that have been better?

The Broader Lesson(s) of the AEA Litigation

Litigation in the lower courts in the cases described above will necessarily continue. And we might see additional litigation in other district courts if the Trump administration starts trying to detain those it believes to be covered by the AEA proclamation there, as well. But the next big step will be whatever the Supreme Court does with the still-pending application in A.A.R.P.

Given all of the above, it sure might behoove the justices to find a way to use that vehicle to reach the merits sooner, rather than later. At the very least, though, Judge Hendrix’s denial of class certification dramatically raises the stakes of a ruling by the Supreme Court that does not preserve district-wide relief in the Northern District of Texas—because the Trump administration would surely see that as a green light to resume AEA removals from Bluebonnet, especially now that it has at least one district court concluding (rather dubiously) that the proclamation is facially valid.

What’s perhaps craziest about all of this is that even this litigation has been limited to just seven different district courts (counting D.D.C. and W.D. Pa.), entirely because of where detainees are being held. If the Supreme Court were to foreclose nationwide injunctive relief in all cases (as the government is asking it to do in the birthright citizenship cases being argued tomorrow), that would effectively require challenges to nationwide policies to potentially be brought in each of the 94 district courts—and perhaps even multiple challenges within each district, especially if class certification proves unavailable in some of those cases. We’ve already had five weeks of chaos in the geographically limited universe of Alien Enemy Act cases. Do we really want 3.5 years of even broader chaos in a geographically set of challenges to an unbounded number of allegedly unlawful Trump administration policies?

If nothing else, I hope the continuing experience with the Alien Enemy Act cases is at least on the justices’ mind as they hear argument tomorrow—and as they consider not just how to rule in the birthright citizenship cases, but the next steps they should take in the Alien Enemy Act litigation, as well.

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1. One complication in the A.S.R. case is that the lead plaintiff was transferred from the Western District of Pennsylvania to the Northern District of Texas while his claim was pending. Because the district court already had jurisdiction, he is still covered by Judge Haines’s order (which requires 21-day notice and an opportunity to be heard before he can be removed). But he also appears to be covered by the Supreme Court’s interim order in A.A.R.P., which, at least for now, categorically forecloses his removal.

2. I’m dying on this incredibly pedantic hill. We refer colloquially to the “District of” [place name]. Here, the place name is the “District of Columbia.” So it’s the District of the District of Columbia. Even the Bluebook, which abbreviates the court to “D.D.C.,” agrees—even if D.D.C. itself … doesn’t. ;-)