First judge approves Trump invoking Alien Enemies Act to deport Venezuelans

A federal judge ruled Tuesday that President Trump can invoke the Alien Enemies Act (AEA) to remove Tren de Aragua members but determined the administration has provided insufficient notice before carrying out the deportations. 

U.S. District Judge Stephanie Haines’s ruling contrasts with several other federal judges who have ruled Trump illegally invoked the wartime statute. She says Trump is within his rights to deport members of a foreign terrorist organization — a designation he has made for Tren de Aragua. 

Haines, a Trump appointee, emphasized her "unflagging obligation is to apply the law as written." 

“Having done its job, the Court now leaves it to the Political Branches of the government, and ultimately to the people who elect those individuals, to decide whether the laws and those executing them continue to reflect their will,” Haines wrote in her 43-page ruling.

The new split comes as the American Civil Liberties Union, which has filed a wave of lawsuits across the country challenging Trump’s use of the AEA, calls on the Supreme Court to immediately take up the issue and swiftly provide a nationwide resolution. 

The 1798 law enables authorities to summarily deport migrants amid an “invasion” or “predatory incursion” by a foreign nation. All three times the law was invoked previously were in times of war, but Trump has looked to use it against alleged Venezuelan gang members. 

Within hours of invoking the law in mid-March, the administration used it to deport more than 100 migrants to a Salvadoran megaprison. 

Haines said she wasn’t resolving whether the president can use the law to remove gang members — one of several consequential legal questions the judge took care to avoid. But by focusing on Trump’s power to use the AEA against foreign terrorist organizations, her ruling put her at odds with several other judges who have weighed the matter. 

Judges in three other jurisdictions have found Trump does not have the power to use the AEA to target gang members, saying the law was not meant to be used outside of an invasion or incursion. 

U.S. District Judge Fernando Rodriguez Jr., a Trump appointee in Texas, said the rarely used law can only be invoked when an “organized, armed force” is entering the United States, writing that Trump’s invocation “exceeds the scope of the statute and, as a result, is unlawful.” 

“The Proclamation makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation. Thus, the Proclamation’s language cannot be read as describing conduct that falls within the meaning of ‘invasion’ for purposes of the AEA,” he wrote in a decision earlier this month. 

The flurry of litigation has created an ever-changing patchwork of protections for migrants in immigration detention who have been told they are subject to removal under the law. 

Under those other courts’ rulings, the AEA cannot be used against migrants detained in Colorado and parts of New York and Texas. 

But Haines’s ruling lifts a temporary order she issued last month blocking the government from using the AEA to deport any migrant detained in the Western District of Pennsylvania. The government can now proceed, so long as they provide 21-days' notice to migrants in both English and Spanish. 

“The Court recognizes that it may need to conduct further analysis and consider additional issues related to the specifics of notice in the future,” Haines wrote. “However, at this preliminary stage of this case, the Court finds that the foregoing is appropriate and complies with the law.”