Federal Court Rules Migrants Have Right to Hearing to Challenge Alien Enemies Act Deportations
Yesterday, US district Judge James Boasberg ruled that migrants have a right to a hearing to challenge their deportation under the Alien Enemies Act of 1798. The Alien Enemies Act is one of the notorious Alien and Sedition Acts of 1798, the only one still in force. Trump is trying to use it to deport alleged members of Tren de Aragua, a Venezuelan dru gang. But the Act can only be used in the event of a declared war, or an “invasion” or “predatory incursion” perpetrated by a “foreign nation or government.” As explained in my earlier writings about this issue, illegal migration and cross-border drug smuggling do not qualify as an “invasion” or “predatory incursion.” Even if they did, they aren’t being perpetrated by a “foreign nation or government.” Tren de Aragua is a criminal organization, but it is pretty obviously not a “nation or government.”
Much of the debate over Trump’s invocation of the AEA focuses on whether he can use it all, given the absence of the requisite war, invasion, or predatory incursion. But Judge Boasberg chose not to address that issue (at least not yet, and instead focused on a different point.
The Court need not resolve the thorny question of whether the judiciary has the authority to assess this claim in the first place. That is because Plaintiffs are likely to succeed on another equally 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 to bear only on those who are, in fact, “alien enemies.” And the Supreme Court and this 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 members of
Article from Reason.com
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