Lee Kovarsky, D. Theodore Rave, and Steve Vladeck on Class Actions and the Alien Enemies Act Litigation
I have previously written about how multiple lower courts have certified habeas classes in Alien Enemies Act deportation cases, and doing so may be the only way to ensure meaningful due process for detained migrants threatened with deportation. But I am not a class action expert, and am therefore limited in what I can say about the case for class action certification in habeas cases.
Legal scholars Lee Kovarsky and D. Theodore Rave (both at the University of Texas) are leading experts on habeas and class action issues, and their recent Lawfare article on “Class Actions and the Alien Enemies Act” is a must-read for anyone interested in these issues. Here is an excerpt:
Removal under the Alien Enemies Act (AEA) raises profound questions of government power, due process, and human dignity—so people sometimes wonder why skirmishes over class action certification are consuming so much legal energy. The answer is that justice is often bound up with procedure. And a federal court in the Northern District of Texas (NDTX) just created a major procedural problem when it refused to certify an AEA detainee class.
In what follows, we want to explain: (1) why AEA detainee class certification is so important and (2) why some of the ideas in the NDTX order are so troubling. (In the interests of disclosure, we have co-authored and signed an amicus brief on behalf of class action and habeas professors in this case.)
The Trump administration is trying to remove noncitizens who it alleges to be members of a Venezuelan gang, Tren de Aragua (TdA). The president invoked AEA removal authority in a proclamation asserting that TdA is an arm of the Venezuelan government that is “inva[ding]” or making a “predatory incursion” into the United States. The Supreme Court later held, in J.G.G. v. Trump, that AEA detainees are entitled to challenge the legality of their removal under the Act by seeking a writ of habeas corpus. The catch: Under the “immediate custodian rule,” detainees must ordinarily mount habeas co
Article from Reason.com
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