Citing the original authors of several now-prominent and authoritative dictionaries, texts explaining how language was understood by the Founders, and decades of case law, U.S. District Judge Charlotte N. Sweeney, a Joe Biden appointee, determined that the U.S. is simply not in an actual war with Venezuela or a transnational gang from within its borders.
And an actual war with a “foreign nation or government” — or an “invasion or predatory incursion” carried out by such a foreign entity — is expressly necessary for invoking the AEA, the court notes.
The judge’s definitional and historical overviews goes on for several pages and leads to an abrupt, if not foregone, conclusion.
“Satisfied with what ‘invasion’ and ‘predatory incursion’ mean, the Court could stop,” Sweeney writes. “These words, fundamentally, demand military and wartime action. The Proclamation makes no finding that satisfies these definitional demands. Thus, to the extent the Proclamation relies on the Act’s ‘invasion’ and ‘incursion’ provisions to justify its removal powers, it does so improperly.”
Then, not content to leave the issue of warfare at all vague, the judge cites recent precedent on the AEA — specifically from the case that led to the U.S. Supreme Court ‘s recent guidance that all potential AEA detainees are entitled to due process via petitioning for writs of habeas corpus.
“A central limit to this power is the Act’s conditional clause — that the United States be at war or under invasion or predatory incursion,” the court’s order reads, quoting U.S. Circuit Judge Karen L. Henderson.
The order goes on, at length:
Petitioners’ first argument, proceeds from a straightforward premise. The President’s authority under the Proclamation is “vested” under the Act. The Act demands, as a “statutory requirement,” an “invasion or predatory incursion.” And because the Act’s “text and history” use these terms “to refer to military actions indicative of an actual or impending war” — not “mass illegal migration” or “criminal activities” — the Act cannot sustain the Proclamation. The Court agrees with Petitioners.
During a hearing on Monday , Sweeney voiced concerns that the government’s resumption of swift-and-collective deportation flights using the obscure, 18th-century wartime authority was likely to run afoul of due process. The court’s order formalizes those concerns by extending an extant temporary restraining order until May 6.
“Petitioners have shown there is a ‘substantial risk that the harm’ of being subject to the Proclamation will arise — despite their current designation as individuals who do not fall under it,” the district court’s order reads. “Should their designation change, the Court has grave concerns that Petitioners would be afforded notice that comports with due process to challenge the determination.”
So, far, Sweeney says, the notice the Trump administration has provided putative AEA subjects is insufficient under the U.S. Constitution.
During the hearing, in an effort to have the restraining order lifted, the U.S. Department of Justice argued any would-be AEA deportations of individuals housed at the Immigration and Customs Enforcement (ICE) facility in Aurora, Colorado, would occur with 24-hour notice.
The plaintiffs, in turn, rubbished that form of notice as not nearly enough — and pushed for at least 30 days of notice to contest AEA deportation.
In the end, the court split the difference, though heavily in favor of the request made by attorneys from the ACLU and the Rocky Mountain Immigrant Advocacy Network.
[T]he Notice provided to Petitioners — and, ostensibly, other detainees in the Facility — is deficient and fails to comport with due process,” the court observed. “Respondents are instructed — absent further guidance from the Supreme Court — to provide a twenty-one (21) day notice to Petitioners and the provisionally certified class they seek to represent.”
But Sweeney went a couple steps further, extending her ruling to cover detainees the government might subject to the AEA in the future and telling the government that its agents “shall not move Petitioners and members of the provisionally certified class outside the District of Colorado.”
In service of this ruling, the court’s order contains a brief discussion about the high court’s decision in another case brought under the AEA.
“The Court’s conclusion is bolstered — if not compelled — by A.A.R.P. and its procedural history,” Sweeney writes — referring to the Supreme Court’s highly unusual Saturday ruling which barred any AEA-based deportation flights in the sprawling Northern District of Texas.
In that case, a majority of justices “prohibited the government from removing members of a putative class that a district found not to be at risk of imminent or irreparable harm,” Sweeney observed.
Here, however, the circumstances are importantly different.
“[C]onsistent with A.A.R.P., it does not matter for habeas jurisdictional purposes whether Petitioners are or are not ‘currently’ detained pursuant to Proclamation,” the order goes on. “This is especially the case where such distinction was immaterial to the United States Supreme Court in granting a putative class the same temporary relief Petitioners seek here.”
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While the judge only extended the restraining order for exactly two more weeks, to the day, Sweeney suggested there could be another “good cause” extension. Additionally, the court invited the plaintiffs to file a motion, due by Friday, for a temporary restraining order.
