Tren de Aragua migrants must be allowed to appeal their deportations ordered under the 1798 Alien Enemies Act, Judge James Boasberg ruled Monday.
The ruling is likely to be appealed — in part, because President Donald Trump’s deputies say the judiciary has no role when the President invokes the 1798 act to deport aliens amid an invasion or a “predatory incursion” of the United States.
“This is unconstitutional,” responded Stephen Miller, the President’s deputy chief of staff.
The judge’s decision did not challenge the 1798 law itself but argued that migrants can claim they are not covered by the president’s application of the Alien Enemies Act to Venezuelan members of the Tren de Aragua criminal gang:
Plaintiffs are likely to succeed on [an] equal fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all. As the government itself concedes, the awesome power granted by the Act may be brought only to bear on those who are in fact, “alien enemies.” And the Supreme Court and this [D.C] circuit have long maintained that federal courts are equipped to adjudicate that question when individuals threatened with detention and removal challenge their designation as such. Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge. Nor may any member of the provisionally surveyed class be removed until they have the opportunity to challenge their designation as well. The Motion to Vacate will thus be denied.
Trump’s deputies have deported more than 200 Venezuelan migrants under the act to a detention center in El Salvador. The deported are said to be members of the violent Tren de Aragua criminal gang that were allowed entry by Biden’s border chief, Alejandro Mayorkas.
Trump and his deputies are pushing hard to prevent the courts from blocking their campaign to roll back President Joe Biden’s welcome for at least 9 million “inadmissible” migrants during his four years in office. Axios.com reported on March 23:
Many top legal experts believe a full-blown constitutional showdown between President Trump and the courts is already here. Others are confident there’s still room to avoid one.
But most agree that the administration’s battle with U.S. District Judge James “Jeb” Boasberg — who last weekend ordered a temporary halt to the administration’s deportation of alleged Venezuelan gang members — is a significant escalation.
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The Justice Department asked that Boasberg and another federal judge, U.S. District Judge Beryl Howell, be removed from pending cases — requests that are almost never granted. Trump said the Senate should impeach Boasberg, which drew a rare rebuke from Chief Justice John Roberts.
Early Monday morning, Trump slammed Boasberg on his TruthSocial network:
This Judge is almost as conflicted (actually, not even close!) as the Judge whose daughter made Millions of Dollars representing Biden/Harris against me, while her father presided over a Fake Case against me, and refused to RECUSE himself. He should be disbarred! Crooked Alvin Bragg was the D.A. in the case. They put me under a GAG ORDER so that I could not talk about it. Miscarriage of Justice!!!
Boasberg was nominated by President George W. Bush and is the top judge in the federal court for D.C. That is a critical job because the court handles many lawsuits related to government actions and regulations.
The 1798 law is one of the many sections in U.S. immigration law that have fallen into disuse because their original purposes were no longer relevant. For example, new citizens are still required to swear they were neither Nazi camp guards nor members of the Communist Party of the Soviet Union.
The law says [emphasis added]:
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.
The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.
The case is J.G.G. vs Trump, Civil Action No. 25-766 (JEB) in the federal District Court of D.C.
