A federal appeals court Wednesday upheld a restraining order temporarily blocking the Trump administration from deporting Venezuelan nationals under the Alien Enemies Act.
The D.C. Circuit Court split 2-1 on the closely watched decision, with Bush appointee Karen Henderson and Obama appointee Patricia Millett in the majority and Trump appointee Justin Walker in the minority.
The case has pitted some of President Trump’s most sweeping assertions of executive power against the judicial branch’s own constitutional authority. At the trial court level, U.S. District Judge James Boasberg is grappling with the Trump administration over whether it violated his order blocking the deportations and should be held in contempt of court. But that ongoing aspect of the contentious case has not yet reached the appeals court.
At issue on appeal was whether the courts have the power to review detentions and deportations under the Alien Enemies Act. Henderson, who didn’t ask any questions during Monday’s oral arguments but wrote for the majority, emphasized that the government does not have the power to sidestep judicial review as it resurrects the rarely used war powers under which it’s expelling foreign nationals without notice or hearing.
“Nazis got better treatment under the Alien Enemies Act than has happened here,” Millett said during oral arguments. “These people weren’t given notice, they weren’t told where they were going.”
Henderson colored her opinion with details of the barbarity of the Trump administration’s sudden removals.
“While awaiting adjudication of his asylum claim, he was expelled to ‘El Salvador with no notice to counsel or family’ based on a misinterpretation of a soccer tattoo,” she wrote of one of the detainees. “To date, his family and counsel have ‘lost all contact’ and ‘have no information regarding his whereabouts or condition.’ The government concedes it ‘lack[s] a complete profile’ or even ‘specific information about each individual’ it has targeted for summary removal.”
Millett, concurring with Henderson, hammered the lack of due process given to the men.
“In the government’s view, based on its allegation alone, Plaintiffs 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,” she wrote in her own opinion.
Two flights of Venezuelan nationals have already been sent to a prison in El Salvador infamous for its human rights abuses and inmate deaths.
In dissent, Walker largely pressed the same point he made during arguments: These cases should be brought as individual habeas petitions in the districts where the detainees are held. The cases are currently going forward as a class under the Administrative Procedure Act.
Walker reiterated that at least for some of the detainees the proper jurisdiction is the southern district of Texas. The government would not say during oral arguments where all of the about 300 people detained under the Alien Enemies Act are being held.
Millett rebutted his argument in her concurrence: “Worst of all, the government has confessed that its preference that Plaintiffs use habeas corpus to challenge their eligibility for AEA removal is a phantasm: The government’s position at oral argument was that, the moment the district court TROs are lifted, it can immediately resume removal flights without affording Plaintiffs notice of the grounds for their removal or any opportunity to call a lawyer, let alone to file a writ of habeas corpus or obtain any review of their legal challenges to removal.”
Walker also took a whack at Judge Boasberg — a constant target of Trump’s ire in recent days — calling his orders “extraordinary” and lambasting him for ordering “aircraft to be turned around mid-flight in the middle of this sensitive ongoing national-security operation.”
The case is one of Trump’s most significant power grabs yet as he seeks to unilaterally expel foreign nationals, including asylum seekers whose claims are still being adjudicated, without giving any legal recourse to those swept up by his Alien Enemies Act proclamation.
Read the ruling here:
Tranls:
Fuck you, you Orange Mango. You’re not a king.
Aaaaaand … Trump distraction incoming. 25% tariff on vehicles from Canada and Mexico. What loss at the appeals court? What Signal chat?
And Henderson. Didn’t see that one coming, there is hope for the judiciary yet.
I was really worried when I saw Henderson was the third judge, it’s good to see that she came down on the side of the rule of law. There was really no other way to rule that was in line with the law and Constitution, so it’s troubling to see a judge (Walker) regurgitate the nonsense from the Trump DoJ. An appeal will be filed shortly with the Supreme Court, Trump will hope that they will give him carte blanche to remove whoever he wants.
It is very important to note that the people grabbed by ICE might get put onto the plane to El Salvador directly, and with no oversight it’s very possible an American citizen could be among those detained…if some brown person out without their ID gets snatched they just might not get their chance to prove their citizenship, or any day in court.
We can hope that the Republican SC justices realize this, and reject this lawless action. If they don’t, then we truly are way outside of the bounds of democracy and justice.
I have the same concerns that you enumerated. But if you’re tan or brown US citizen who is swept up in this witch hunt who in El Salvador can help you? And here in the US are they even keeping accurate records?
As for Trump appointee Judge Walker, planes can and do turn around once they take off. The laws of physics and aviation will allow it.
So cruel, so callous, so openly contemptuous of the judiciary and the very concept of due process, that even a Reaganite fossil can see it.