The Alien Enemies Act, passed in 1798 when the still-new Republic feared foreign invasion, is a wartime authority providing that the President may—after a public proclamation—apprehend and remove citizens of a foreign country that is engaged in a “declared war” or “invasion or predatory incursion” against the United States. It has been used only during the War of 1812, World War I, and World War II.
On Saturday, March 15, 2025, President Trump issued a proclamation deeming the Nicaraguan gang, Tren de Aragua, to be a foreign nation or government engaged in an “invasion or predatory incursion” against the United States, and ordering the Department of Homeland Security to promptly remove its alleged members from the United States.
We filed this lawsuit the same morning, together with the National ACLU and Democracy Forward, alleging that the Alien Enemies Act had no application in this situation and violated the immigration statutes, which are explicit that they provide “the sole and exclusive procedure” by which the government may determine whether to remove an individual.
The federal court issued a temporary restraining order that morning protecting our named clients from removal. That evening, after a Saturday afternoon hearing, the court certified our case as a class action and prohibited the removal of all class members.
The government immediately appealed and sought a stay of the temporary restraining order, but did not obtain one.
Nevertheless, the Trump administration removed 137 Venezuelan immigrants that same evening, flying them to El Salvador, which had agreed to imprison them there. We believe this was a violation of the court’s order.
Much has happened since March 15.
In the district court, the government moved to dissolve the TRO, and we opposed. On March 24, Chief Judge Boasberg agreed with us, issuing an opinion explaining how people labeled “alien enemies” had, at a minimum, a right to due process before being deported—which President Trump’s proclamation completely failed to provide.
Chief Judge Boasberg also directed the government to show cause why he should not find that they had violated his order when they flew two planeloads of alleged Tren de Aragua members to El Salvador after his order to turn the planes around. The government’s main argument is that the planes had left U.S. airspace and that court orders don’t apply outside the United States. We replied that court orders apply to the parties in cases, and the defendants in this case are all in the United States. The court has scheduled a hearing on this issue.
Chief Judge Boasberg also directed the government to provide details about the deportation flights: when and where they took off, when and where they landed, how many people were aboard. The government refused to do so, and claimed that the information was a “state secret” that could not be disclosed, even privately to the court. The government filed a brief defending that claim; we filed a brief showing why the information was not a state secret; some law professors also filed a brief explaining why the state secrets doctrine had no application to these facts (which the whole world knows, anyway, because the flights were tracked in real time using publicly available data).
We have also filed a motion for a preliminary injunction, which would take effect when the time-limited TRO expires. The court has scheduled a hearing on that motion for April 8.
Meanwhile, on March 15—the same day the district court issued the TRO—the government filed an appeal and an emergency motion to stay the TRO. The court of appeals expedited the government’s motion and heard argument on March 24. In 92 pages of opinions issued two days later, the court denied the motion and allowed the TRO to remain in place. Judge Henderson agreed with us that the Alien Enemies Act applies only to invasions or incursions by foreign governments, not criminal gang members. Judge Millett agreed with us that people designated as alien enemies are entitled to due process. Judge Walker dissented, but only on the ground that the due process to which people are entitled can be obtained through a petition for habeas corpus, which must be filed in a court where the people are being held—here, southern Texas.
Meanwhile, the government filed an emergency application in the U.S. Supreme Court, asking them to dissolve the TRO on the ground that the temporary restraining order was an intolerable judicial interference with the President’s power to protect national security against an invasion of Venezuelan criminals. The government asked for an immediate stay of the TRO, but the Court instead directed us to respond on April 1, which we did. The government filed a reply on April 2 and on April 7 the Court granted the government’s motion for a stay, explaining that challenges to the use of the Alien Enemies Act can be brought only as petitions for writs of habeas corpus, and can be filed only in the district where the immigrants are confined (here, mostly in Texas).
Following that decision, the ACLU filed petitions for writs of habeas corpus on behalf of detainees confined in Texas, see here: JAV v. Trump, and on behalf of two detainees held in New York, see here: G.F.F. v. Trump. We expect that Chief Judge Boasberg’s inquiry into whether the government should be held in contempt for violating his March 15 order to turn the planes around will continue.
