The Trump administration told a Washington, D.C., court on Thursday that the president was the sole person who could decide whether the conditions of the Alien Enemies Act had been met. The argument comes as the government has faced a string of legal setbacks over its decision to invoke the powerful deportation law.
Attorneys for the government wrote in court papers that President Donald Trump can declare a war or invasion, one of which is required to use the AEA, and that the courts have no authority to review Trump’s decision.
“As for whether the Act’s preconditions are satisfied, that is the President’s call alone; the federal courts have no role to play,” the attorneys said.
The Department of Justice’s argument was at odds with a ruling issued by a judge in the Southern District of Texas hours earlier in a similar case.
Texas-based judge Fernando Rodriguez, a Trump appointee, found that the administration did not produce sufficient evidence to show that the transnational gang Tren de Aragua was invading the United States at the behest of the Venezuelan government.
Rodriguez struck down Trump’s use of the AEA in his district, marking the first time a federal judge has weighed in on the president’s authority to invoke the law.
Several related lawsuits are playing out across the country, including the one in Washington brought by the American Civil Liberties Union and one in the Northern District of Texas that is now pending before the Supreme Court.
The Supreme Court first chimed in last month on Trump’s decision to use the AEA to deport what the ACLU says was at least 137 Venezuelans to Salvadoran mega-prison Centro de Confinamiento del Terrorismo with little or no due process. The high court did not rule on key questions about Trump’s power to invoke the act, but did say the administration must give “reasonable” notice to the alleged TdA members so they could challenge their imminent deportation in court if they wanted to.
In another blow to the Trump administration later that month, the Supreme Court temporarily blocked the government from deporting anyone in the Northern District of Texas under the AEA.
The ACLU, for its part, has asked Judge James Boasberg to order the Trump administration to return all of the men it deported to CECOT, stop any payments to El Salvador related to imprisoning the Venezuelan migrants, and require a 30-day notice for any new AEA deportations as part of due process.
One of the ACLU’s clients is Andry Hernandez Romero, a tattooed gay makeup artist whose attorney says he is unaffiliated with TdA, who was abruptly deported to CECOT with no due process. A Department of Homeland Security spokeswoman said the DHS has other intelligence supporting its determination that Hernandez Romero is a gang member.
The Trump administration’s court filing on Thursday night offers a road map of how it plans to fight the AEA lawsuits as they proceed.
The administration also said in its arguments to Boasberg that “vague” statements by public officials that the U.S. government was paying El Salvador were irrelevant to the court and that the U.S. has no control over the country’s prisoners.
“This Court, the United States, and even the Petitioners realize the reality: the government does not have custody of the Petitioners in CECOT, the separate sovereign nation of El Salvador does. That ends the inquiry,” DOJ attorneys wrote.
JUDGE RULES TRUMP UNLAWFULLY INVOKED ALIEN ENEMIES ACT
Sen. Chris Van Hollen (D-MD), who recently visited El Salvador, said during a press conference that the U.S. agreed to pay the country $15 million to accept deportees.
“My best information, and it’s pretty good, indicates that to date they’ve paid out more than $4 million of that $15 million,” Van Hollen said.