Trump has invoked the Alien Enemies Act, stating that members of the Tren de Aragua gang invaded the United States.
The Trump administration may suspend the writ of habeas corpus as litigation plays out in cases where potential deportees sought to challenge their detention under that legal vehicle.
“The Constitution is clear ... that the privilege of the writ of habeas corpus can be suspended in a time of invasion,” Deputy Chief of Staff Stephen Miller
said outside the White House on May 9.
“So it’s an option we’re actively looking at.”
Miller was referring to a section of Article I of the Constitution, which
reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
His comments came amid court battles over immigration enforcement, in which the administration has argued that some federal judges exceeded their authority in blocking the executive branch’s policies.
On May 9, Miller added that “a lot of it depends on whether the courts do the right thing or not.”
So far, federal judges in multiple jurisdictions have issued orders restricting President Donald Trump’s ability to deport people under his March proclamation, which invoked the Alien Enemies Act of 1898 in order to remove illegal immigrants who are members of the Tren de Aragua (TdA) gang.
Many of those orders came after lawsuits that potential deportees brought under habeas.
Some of these orders have been followed by opinions in which the judges cast doubt on the legitimacy of Trump’s invocation.
Most recently, U.S. District Judge Alvin Hellerstein issued an
opinion disagreeing that TdA, which originated in Venezuela, was engaged in an invasion under the Alien Enemies Act.
While the Supreme Court has intervened three times regarding these deportations, it hasn’t definitively ruled on whether Trump properly invoked the Act.
Instead, it temporarily halted some deportations and said in April that detained individuals must receive notice they were subject to removal under the Act, as well as an opportunity to file for habeas relief.
Court documents later showed the Trump administration provided notice to detainees, but some judges have questioned whether the administration’s procedures accorded with the Supreme Court decision.
Referring to a notice from Texas, Hellerstein said, “the notice is a fleeting affair, for if the alien fails to express an intent to file a petition for habeas relief within a dozen hours of being served ... or to actually file a petition within another 24-hour period, ICE may ‘proceed with removal.’”
He was quoting a
declaration from an ICE assistant field director in Texas, who described how authorities were processing detainees.
Assistant Field Office Director Carlos Cisneros said in his declaration that ICE generally would not remove individuals under the Alien Enemies Act if they had a pending habeas petition.
U.S. Solicitor General D. John Sauer has
urged the Supreme Court in one of the cases not to grant additional relief.
He said what the Venezuelan plaintiffs in the lawsuit were asking for was “extraordinary.”
Detainees receiving notice also “have had adequate time to file habeas claims,” he said.
It seems likely the Supreme Court will eventually elaborate its views on Trump’s invocation and how due process should occur, potentially teeing up a historic decision.
Trump’s proclamation represented only the fourth time the Alien Enemies Act had been invoked in the nation’s history.
And it would be the
fifth time in the nation’s history that habeas was suspended, according to the National Constitution Center, if Trump decided to do so.
Trump invoked the Alien Enemies Act in March, stating that the TdA gang members had infiltrated the Venezuelan regime and invaded the United States, justifying their expedited removal.
“Evidence irrefutably demonstrates that TdA has invaded the United States and continues to invade, attempt to invade, and threaten to invade the country; perpetrated irregular warfare within the country; and used drug trafficking as a weapon against our citizens,” his
March 15 proclamation read.
