On Saturday morning, attorneys representing several pseudonymous Venezuelan men sued the government in order to bar the implementation of an obscure 18th-century wartime authority.
In quick fashion, and at least for now, D.C. District Court Chief Judge James E. Boasberg, a jurist who got his start under George W. Bush and was then promoted by Barack Obama, sided with the plaintiffs.
“The Court has reviewed Plaintiffs’ Complaint and Motion for Temporary Restraining Order,” a minute order reads. “Given the exigent circumstances that it has been made aware of this morning, it has determined that an immediate Order is warranted to maintain the status quo until a hearing can be set.”
In the 24-page lawsuit , the ACLU explained that the law in question is “a wartime measure that has been used only three times in our Nation’s history: the War of 1812, World War 1 and World War II.”
This bird’s-eye-view history lesson, however, is incomplete.
The lawsuit goes on to explain that the wartime authority was “infamously” used by Franklin Delano Roosevelt to intern “noncitizens from Japan, Germany, Italy, Hungary Romania, and Bulgaria.”
Though many such detainees were eventually deported, the complaint argues, the controversial law was “never used as a widespread method of removal.” The lawsuit aims to juxtapose this wartime history with the anticipated use of the law as something of a go-to deportation tool by the current government.
“[T]he AEA has only ever been a power invoked in time of war, and plainly only applies to warlike actions: it cannot be used here against nationals of a country — Venezuela — with whom the United States is not at war, which is not invading the United States, and which has not launched a predatory incursion into the United States,” the complaint reads. “The government’s Proclamation would allow agents to immediately put noncitizens on planes without any review of any aspect of the determination that they are Alien Enemies.”
So far, President Donald Trump has expressly said he will use the disputed law against cartels — singling out “the dangerous Tren de Aragua,” a massive transnational gang based in Venezuela.
The ACLU insists the invocation of the law is inapposite.
“The Trump administration’s intent to use a wartime authority for immigration enforcement is as unprecedented as it is lawless,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project and lead counsel in the lawsuit said in a statement. “It may be the administration’s most extreme measure yet, and that is saying a lot.”
In their motion for a temporary restraining order and an accompanying legal memorandum , the plaintiffs plead urgency.
“Plaintiffs and the proposed class are imminent danger of being removed tonight or early tomorrow morning under the Alien Enemies Act — and this Court permanently losing jurisdiction,” the emergency application reads.
The motion goes on, at length [emphasis in original]:
Defendants’ invocation and application of the Alien Enemies Act patently violates the plain text of the statute and exceeds the limited authority granted to the Executive Branch by Congress. Defendants’ invocation and application of the Alien Enemies Act also violates the Immigration and Nationality Act, statutes providing protection for people seeking humanitarian relief, and due process. In the absence of a temporary restraining order, Plaintiffs will suffer irreparable injury, and the balance of hardships and the public interest favor relief. Critically, moreover, if Plaintiffs are removed to the custody of another country, this Court will lose jurisdiction .
To hear the plaintiffs tell it, the wartime law can only be used in times of actual war and only against an actual “foreign nation or government” that is engaged in a military “invasion” or launching “predatory incursions” into the United States.
“The United States is not at war, nor has it been invaded,” Democracy Forward CEO Skye Perryman said in a press release . “The president’s anticipated invocation of wartime authority — which is not needed to conduct lawful immigration enforcement operations — is the latest step in an accelerating authoritarian playbook.”
The legal memo elaborates:
The President has invoked — or will imminently invoke — a war power, the Alien Enemies Act of 1798 (“AEA”), in an attempt to summarily remove noncitizens from the United States and bypass the immigration laws Congress has enacted. In either circumstance, a Temporary Restraining Order is needed because there may not be sufficient time for this Court to intervene between the time when the Act is invoked and when the planes removing Plaintiffs-Petitioners depart the United States. But the United States is not at war, and the prerequisites for invocation of the AEA have not been met.
Since none of the law’s conditions are met, the court filings argue, Trump’s would-be use of the law violates the AEA itself, various immigration laws, the Fifth Amendment’s guarantee of due process, and the constitutional right to habeas corpus .
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The judge overseeing the matter did not much elaborate except to say the plaintiffs “satisfied the four factors governing the issuance of preliminary relief.” Boasberg ruled that the government “shall not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court.”
While the court’s order could last at least two weeks, intervening motions practice and oral argument could soon and substantially shift the calculus in the already fast-moving litigation.
The docket for the case was nearly instantly voluminous with motions, orders, appearances — and the government’s swift appeal of the temporary restraining order to the D.C. Circuit Court.
Boasberg, for his part, also quickly scheduled two hearings. One hearing is slated for Saturday evening to deal with class certification issues. A second hearing, related to the restraining order and likely some merits of the case, is scheduled for Monday afternoon.
