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President Donald Trump’s administration on Friday asked the Supreme Court to wade into the fraught legal battle over enforcing the Alien Enemies Act, the wartime authority he used to rapidly deport alleged members of a Venezuelan gang.
The emergency appeal, which asks the justices to overturn an order from US District Judge James Boasberg blocking further deportations under the act, further thrusts the Supreme Court into Trump’s whirlwind. It is perhaps the most significant matter now pending on the court’s docket dealing with his second term and it sits at the center of an explosive confrontation between the White House and the judiciary.
“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country – the President, through Article II, or the judiciary,” Acting Solicitor General Sarah Harris told the Supreme Court. “The Constitution supplies a clear answer: the President. The republic cannot afford a different choice.”
Like other recent appeals, the Trump administration’s argument was heavy on complaints about lower courts standing in his way, handing down temporary orders that – while not resolving the challenges over the president’s power – have at least put some of his agenda on hold temporarily.
“Only this Court can stop rule-by-TRO from further upending the separation of powers – the sooner, the better,” Harris wrote. “Here, the district court’s orders have rebuffed the President’s judgments as to how to protect the Nation against foreign terrorist organizations and risk debilitating effects for delicate foreign negotiations.”
The Department of Justice also asked the Supreme Court for a temporary “administrative stay,” that would put Boasberg’s order on hold for a few days to give the justices time to review the case. Such a stay, if granted, would allow the administration to immediately restart deportations.
The court has asked the individuals challenging Trump’s use of the Alien Enemies Act to respond to the emergency request by Tuesday.
At issue in the case is Trump’s invocation on March 15 of a wartime authority, the Alien Enemies Act of 1798, which gives him broad power to target and remove undocumented immigrants. The law grants that authority in times of war or when an enemy attempts an “invasion or predatory incursion.”
Soon after Trump invoked the law, officials loaded up three planes with more than 200 Venezuelan nationals and flew them to El Salvador, where they are being housed in a maximum security prison. The administration has since said that some of those people were deported under authorities other than the 18th Century act. The Trump administration has said the men were affiliated with the Venezuelan gang Tren de Aragua.
The case lands at the high court days after Chief Justice John Roberts issued a rare rebuke of Trump’s suggestion that Boasberg be impeached over his handling of the case.
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in a statement released by the Supreme Court. “The normal appellate review process exists for that purpose.”
Who sued and why
Five Venezuelans still in the country who are being held by the Department of Homeland Security sued the administration, challenging its use of the law. Boasberg, nominated to the bench by President Barack Obama, temporarily blocked the administration from any more deportations under the act while he considers the case – either against the five who sued, or anyone else in their situation.
Notably, Boasberg’s order didn’t block the administration from deporting those same people under other laws, nor did it stop the administration from apprehending immigrants under the act.
Trump nevertheless quickly appealed.
The DC Circuit Court of Appeals ruled 2-1 on Wednesday that Boasberg’s orders blocking Trump’s use of the sweeping wartime authority could stand while the legal challenge plays out. The majority included one judge nominated by President George H.W. Bush and another by Obama. It is that decision that Trump is appealing to the Supreme Court.
US Circuit Judge Karen Henderson, in a lengthy concurrence, offered the kind of textualist analysis that may find resonance with many of the court’s conservatives. She tore through Trump’s arguments that courts could not review the law’s enforcement and the notion that the flow of migrants over the US-Mexico border represents an invasion.
“The term ‘invasion’ was well known to the Fifth Congress and the American public circa 1798,” she wrote. “The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense.”
The orders issued by Boasberg are set to expire on Saturday unless the judge agrees to extend them for two weeks. That extension would play out as Boasberg hears arguments over whether to issue a preliminary injunction – a more fulsome ruling on Trump’s use of the AEA that would help speed up the larger legal fight over his invocation of the law.
Attorneys representing the Venezuelans who brought the lawsuit vowed later Friday to vigorously oppose the administration’s request before the Supreme Court.
“This was never about immigration policy. This is about the president’s flagrant violation of the law, and his Justice Department’s search for a court that will rubber stamp it,” said Skye Perryman, an attorney with Democracy Forward. “We will continue to meet this administration in court to protect people and our democratic values.”
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When the Supreme Court last considered the Alien Enemies Act, in 1948, it gave President Harry Truman broad deference to decide when the law could be invoked. Truman had sought to remove a German national and the appeal arrived at the Supreme Court three years after the end of World War II.
War, the court reasoned at that time, isn’t necessarily over “when the shooting stops.” It was the president, the Supreme Court said, that determined when a war was over.
Stephen Miller, who is Trump’s deputy chief of staff for policy, and others in the administration appear to have interpreted that decision as disallowing any court review of how a president implements the law. But Henderson shot down that reading in her concurrence on Wednesday.
“The elected branches – not the unelected bench – decide when a war has terminated. That is a question of fact for elected leaders,” she wrote. “That does not mean that courts cannot pass on the legal meaning of statutory terms.”
The emergency appeal is the third pending on the high court’s emergency docket from the second Trump administration. The Department of Justice has also asked the court to limit the scope of an order temporarily barring Trump from enforcing his effort to end birthright citizenship. And, more recently, administration asked the court to allow it to freeze millions of dollars in grants to states for addressing teacher shortages.
This story has been updated with additional developments.