Fourth Circuit Rules Against Trump Administration in Alien Enemies Act Case
Today, in a 2-1 ruling in J.O.P. v. Department of Homeland Security, the US Court of Appeals for the Fourth Circuit ruled that the Trump Administration’s invocation of the the Alien Enemies Act of 1798 cannot override a legal settlement barring deportation of a group of migrants. Judge Roger Gregory’s concurring opinion (the only one of the three opinions in the case to address the issue) joins a growing list of federal court rulings and opinions holding that Trump’s invocation of the AEA is illegal.
The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) “[w]henever 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.” Four federal judges – three district judges and Judge Henderson of the DC Circuit – have previously ruled that Trump’s invocation of the AEA is illegal because there is no declared war, and the activities of the Venezuelan drug gang Tren de Aragua (which Trump cites as justification for invoking AEA) are not an “invasion” or “predatory incursion.” Judge Gregory’s opinion makes it five. One federal district judge has issued a badly flawed ruling holding that TdA’s actions qualify as a “predatory incursion.”
In today’s Fourth Circuit ruling, Judge Benjamin, joined by Judge Gregory, ruled that Trump’s invocation of the AEA – even if valid – could not override a settlement barring deportation of a Venezuelan migrant who was among many illegally deported to imprisonment in El Salvador under Trump’s AEA proclamation. In a concurring opinion, Judge Gregory joins the rapidly growing list of judges concluding that Trump’s invocation of the AEA is illegal:
The President’s ipse dixit declaration that the nation of Venezuela, albeit through
Tren de Aragua (“TdA”) as a proxy, has engaged in an “invasion” or “predatory incursion” against territory of the United States is unsupportable. Even worse, the government’s argument in this case
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