President Trump’s push to remove people from the U.S. using the wartime Alien Enemies Act got a rare stamp of approval from a federal judge this week, as one of the more controversial parts of Mr. Trump’s immigration strategy faces a slew of court challenges.
U.S. District Judge Stephanie Haines of Pennsylvania, a Trump nominee, ruled Tuesday the president is legally allowed to use the 18th-century law to deport Venezuelan migrants accused of belonging to the gang Tren de Aragua. However, Haines also said the administration hasn’t given people facing Alien Enemies Act removal enough notice to bring court challenges.
The ruling is fairly narrow: The case only applies to one person, a Venezuelan man who was arrested in central Pennsylvania and moved to Texas. But it further complicates a nationwide battle over the Alien Enemies Act, which Mr. Trump has used to rapidly expel hundreds of migrants and send them to a supermax prison in El Salvador.
What is the Alien Enemies Act?
The Alien Enemies Act of 1798 says the government can remove people during an invasion or a “predatory incursion” launched by a foreign nation. Prior to this year, the law had been invoked three times in history, during the War of 1812, World War I and World War II.
In all other cases, the law has been used for citizens of countries at war with the United States. But the Trump administration argued in a March proclamation that accused Tren de Aragua members count as “alien enemies,” claiming the gang — which Mr. Trump has deemed a foreign terrorist group — has extensive links to the Venezuelan government.
The use of the Alien Enemies Act has drawn controversy, with critics arguing the administration hasn’t given people an opportunity to challenge their cases in court. Many of the migrants who were sent to a Salvadoran prison don’t have clear criminal records, CBS News’ “60 Minutes” found last month. The Trump administration has stood by its use of the law, casting it as a necessary step to crack down on crime by the notorious Tren de Aragua.
Why does the judge say the Trump administration can use the Alien Enemies Act?
Haines wrote on Tuesday the Alien Enemies Act can apply to Tren de Aragua members. The judge defined a “predatory incursion” as a “hostile entry into the United States by a cohesive group,” like a U.S.-designated terrorist group, with a “common goal of causing significant disruption” — which she said lines up with Mr. Trump’s proclamation in March.
Haines also deferred to Mr. Trump on the question of whether Tren de Aragua is directed by Venezuela’s government, though some U.S. intelligence agencies disagree with the administration, according to a memo obtained by several news outlets.
But the judge broke with the administration in one key respect: She said the government must give people facing Alien Enemies Act removal at least 21 days’ notice, in both English and Spanish, so they can bring court challenges. That’s far more than the 12 hours’ notice Haines said the government had promised to give in the past.
The case reached Haines’ desk after a Venezuelan man, referred to as A.S.R., filed a habeas corpus petition last month asking her to stop the government from deporting him.
The man’s lawyers say he was detained by ICE agents, asked about his tattoos and accused of links to Tren de Aragua, which he strongly denies. He was later moved to Texas. The petition says the man — who entered the U.S. in 2023 and is seeking asylum — fears the government will try to use the Alien Enemies Act against him.
Why is Judge Haines’ Alien Enemies Act ruling unusual?
Haines is the first judge to explicitly say the Trump administration can use the Alien Enemies Act to remove Venezuelan migrants, making the Pennsylvania jurist an “outlier among all of the other federal courts,” says Columbia Law School professor Elora Mukherjee.
Judges in three other states — Texas, Colorado and New York — have blocked Alien Enemies Act removals in their court districts. In some of these cases, the judges have said outright that the Trump administration’s use of the 1798 law is likely illegal, often concluding that Tren de Aragua likely isn’t involved in an invasion under the law.
Last week, U.S. District Judge Alvin Hellerstein of Manhattan rejected the government’s arguments. His ruling also took aim at the Trump administration for transporting hundreds of Alien Enemies Act subjects to the Terrorism Confinement Center in El Salvador under a deal with that country’s government, calling it a “notoriously evil jail.”
Ahilan Arulanantham, a University of California, Los Angeles Law School professor who has worked on cases involving the Alien Enemies Act, called Haines’ ruling “wrong on a couple of key points.”
He says it gives too much legal weight to the fact that the Trump administration considers Tren de Aragua a foreign terrorist organization, calling it “deeply misguided” and at odds with other rulings on terrorism designations. He also believes Haines gives excessive deference to the administration on whether an invasion is taking place.
“If every group of individuals … who the U.S. government says are controlled by a foreign government can be therefore treated as an invading force, then the Alien Enemies Act power is truly unbounded,” Arulanantham told CBS News.
Georgetown Law School Professor David Super also questioned the amount of deference that Haines gave the administration, including on the questions of whether Tren de Aragua is invading the U.S. and whether the Venezuelan government is responsible.
“This is involving individual liberties, and sweeping deference to the executive to abridge individual liberties is not part of our tradition,” Super told CBS News.
Mr. Trump and his allies have defended his use of the law, arguing it’s a necessary tool to deport Tren de Aragua members and halt gang violence. His March proclamation said Tren de Aragua members have “unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States.”
Tren de Aragua “is one of the most violent and ruthless terrorist gangs on planet earth. They rape, maim and murder for sport,” White House Press Secretary Karoline Leavitt has said.
In court papers, the administration has argued it is “the President’s call alone” whether the Alien Enemies Act applies, and whether the U.S. faces a “predatory incursion” is the type of foreign policy decision that’s typically left to the president. The government’s lawyers have also said the term “predatory incursion” can apply to Tren de Aragua members, arguing it can have a broader definition than just military action.
The White House did not respond to a request for comment on Haines’ ruling.
What does Judge Haines’ ruling mean for migrants?
The ruling is fairly narrow because — at least for now — it appears to only impact the Venezuelan man who initially brought the habeas corpus petition.
In an earlier ruling last month, the judge treated the case as a class action, temporarily blocking the Trump administration from removing anybody from western Pennsylvania under the Alien Enemies Act unless they’ve gotten 14 days’ notice.
But Haines wrote Tuesday that there is no evidence anyone in her court district is currently being held under the law — including the man who brought the case, since he was transferred to Texas last month. For that reason, she narrowed the case to just the one petitioner.
“My read of it is that Judge Haines’ order is extremely limited,” Mukherjee said.
Mukherjee also noted that Haines’ ruling still requires the administration to give migrants plenty of notice — a view that other courts have held, including the Supreme Court.
“Universally, the federal courts are trying to curb the executive branch’s reliance on the Alien Enemies Act as a mechanism for swift deportations from the United States without providing meaningful due process and notice to people,” Mukherjee said.
Still, Arulanantham said the ruling will be “enormously significant” if it’s upheld on appeal.
If the government can keep using the Alien Enemies Act to remove alleged Tren de Aragua members, but those migrants can challenge their detentions in court based on the specific facts of their situation, it could “become an enormous drain on the legal system,” requiring judges to hold a “mini-trial” for each planned removal, Arulanantham said.
Has the Supreme Court ruled on the Alien Enemies Act?
The Supreme Court hasn’t weighed in directly on the question of whether the Alien Enemies Act is being used properly, but it has said the government needs to give migrants held under the law a chance at judicial review — which Haines’ ruling cites.
The high court handed down that ruling in April. In the same order, the justices overturned a ruling from a Washington, D.C., judge blocking Alien Enemies Act removals — but the Supreme Court focused on whether the judge had jurisdiction over migrants held in Texas, not on whether the Trump administration was allowed to use the 1798 law.
The court also temporarily blocked Alien Enemies Act rulings in one part of Texas last month, in a brief emergency order that still remains in effect.
Super believes the Supreme Court is likely to weigh in on the Alien Enemies Act again — possibly before its summer recess.
“This is certainly going back to the Supreme Court sooner rather than later,” Super said.
Can the Trump administration suspend habeas corpus?
Many of the cases challenging the Alien Enemies Act are brought under writs of habeas corpus — a centuries-old legal concept that grants people the right to challenge their imprisonment.
Last week, White House deputy chief of staff Stephen Miller told reporters the Trump administration is “actively looking at” suspending habeas corpus, citing a provision of the Constitution that allows it to be suspended “in cases of rebellion or invasion.” That step has only been taken under extremely rare circumstances in the past, including during the Civil War.
Many legal experts believe the idea of suspending habeas corpus to deal with illegal immigration is unlikely to pass legal muster. Super told CBS News the gambit would put “an even higher burden on the administration that we are at war.”
“Habeas corpus goes all the way back to the Magna Carta,” Super said. “I think courts will be very concerned about discarding a provision that is 800 years old in defense of our liberties.”
It’s also widely believed that suspensions of habeas corpus must be authorized by Congress.
“There are centuries of case law on this question,” Mukherjee said. “If the executive branch tries to suspend habeas corpus, that would be unconstitutional and illegal, and a dramatic escalation of the authoritarian overreach of the executive branch.”
https://www.cbsnews.com/news/trump-alien-enemies-act-pennsylvania-ruling/
