As many readers know, Chief Judge Jeb Boasberg has issued and extended temporary restraining orders that prohibit the Trump Administration from removing potentially hundreds of individuals from the United States before next Saturday (April 12) pursuant to a Presidential Proclamation purporting to invoke the Alien Enemies Act, which the White House made public, and which thus took effect, on March 15. (The most comprehensive description of the basis for Boasberg’s orders is found in his March 24 memorandum denying the government’s motion to vacate the TROs.) Boasberg is convening a hearing next Tuesday to decide whether to grant plaintiffs’ request for a preliminary injunction, which would prohibit such removals beyond April 12.
In the meantime, the Acting Solicitor General has asked the Supreme Court to vacate the TROs. In my humble opinion, that application for vacatur, and the government’s reply brief in support of it that the Acting SG filed yesterday, fall considerably short of the historical standards for quality and forthrightness that typify briefs that the Office of the Solicitor General files in the Supreme Court. Whether or not the Justices (or others) agree with that general assessment, I thought it would be useful to quickly highlight several of the more remarkable things about the reply brief the Acting SG filed yesterday, given that the Justices might be considering the application on a very expedited basis. (For readers seeking a more detailed understanding of what the case is about, the ACLU’s brief in opposition to the Acting SG’s application contains much more comprehensive responses to the arguments in the Government’s opening brief. And the ACLU’s recently filed memorandum in support of its motion for a preliminary injunction includes a far more detailed description of what’s been happening with respect to the individuals transferred to the brutal El Salvador prison pursuant to the President’s implausible invocation of the Enemy Aliens Act of 1798.).
Here are four of the most troubling aspects of the Acting SG’s briefs:
1. The legal basis for the Government’s request that the Supreme Court vacate the TROs is fairly discrete and somewhat technical. The Acting SG argues that because each of the hundreds of individuals in question can challenge their removal from the U.S. pursuant to the AEA Proclamation in individual habeas corpus petitions in the districts where they are being detained—which for many or all of them is the Southern District of Texas—the Administrative Procedure Act (APA) precludes them from bringing a class action for prospective relief from removal pursuant to the APA itself, which is what they’ve done in the suit before Boasberg in the U.S. District Court for the District of Columbia. As the Acting SG puts it, “respondents cannot obtain relief because they brought the wrong claims in the wrong court.”
As I note in Point 2 below, I think this argument for habeas exclusivity is dubious, and the Acting SG does not even engage with the principal Supreme Court precedents that bear on the issue. The ACLU argues likewise. The ACLU brief also explains to the Court, however, that the Government’s proposed alternative (and thus, in the Government’s view, the exclusive) means of challenging removal—individual habeas petitions—is chimerical, largely because the Trump Administration would likely whisk the individuals off to an El Salvadoran prison as soon as the TROs are no longer in effect, thereby effectively precluding any meaningful opportunity for judicial review via habeas. That became evident with the government’s admissions in the appellate oral argument below. This is how Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit starkly put the point in her opinion last week:
The government’s position at oral argument was that, the moment the district court TROs are lifted, it can immediately resume removal flights without affording Plaintiffs notice of the grounds for their removal or any opportunity to call a lawyer, let alone to file a writ of habeas corpus or obtain any review of their legal challenges to removal. Oral Arg. 1:44:04-1:45:51. It is irreparable injury to reduce to a shell game the basic lifeline of due process before an unprecedented and potentially irreversible removal occurs.
In response to this concern, the Acting SG offers this cryptic sentence in her reply brief: “[T]his Office has been informed that aliens detained pursuant to the AEA receive notice that they are detained pursuant to the AEA, and could thus bring habeas petitions to challenge that detention, even if they cannot challenge the notice itself or collaterally attack removal as in a Title 8 proceeding.” (Emphasis added.)
A few things are especially noteworthy about this rather inscrutable sentence. First, of course, is the fact that the awkward passive-voice assertion (“has been informed”) does not identify who has “informed” the SG’s Office, what evidence they offered to support the assertion, or the nature of the alleged notice to the covered individuals. At the very least, it leaves a factual uncertainty about which individuals received the notice; from whom; and when. (The named plaintiffs, for example, have represented that they didn’t receive any notice or other paperwork before they were boarded on a plane that would have taken them to El Salvador but for Chief Judge Boasberg’s first TRO.)
Presumably, however, the SG is referring to (though not identifying) this one-page “notice” document, which apparently has been given to some, though perhaps not all, of the covered individuals. Here’s what that document tells an individual who receives it:
You have been determined to be at least fourteen years of age; not a citizen or lawful permanent resident of the United States; a citizen of Venezuela; and a member of Tren de Aragua. Accordingly, you have been determined to be an Alien Enemy subject to apprehension, restraint, and removal from the United States. You are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal. Until you are removed from the United States, you will remain detained under Title 40, Unite[d] States Code, Section 21. (Emphasis added.)
Even if, as the SG suggests, that document informed persons of their right to challenge their alleged AEA detention, the recipients wouldn’t have an obvious reason to challenge that detention, as such, because the government already was detaining each of them under other statutory authority before the President made public (and thus effective) his AEA Proclamation on March 15, and therefore the individuals would continue to be detained even apart from the Proclamation. The important effect of the AEA Proclamation—and the subject of the litigation before the Court—is not to allow the government to detain the individuals, which it was already doing and can continue to do even while the TROs are in effect (a point Boasberg has repeatedly emphasized), nor even to afford the government authority to remove them pursuant to ordinary immigration laws (another point Boasberg has stressed), but instead to provide alleged authority to remove them immediately, and without any notice or time to provide for a hearing, to the Salvadoran prison. Hence, the only notice of any value in this context would be one that unequivocally informs the individuals of a clear right to challenge in court the legality of their immediate removal.
In any event, this notice document does not say—in the words of the Acting SG—that the person “could thus bring habeas petitions to challenge that detention,” let alone that the person can file a habeas petition to challenge their imminent removal from the United States to a Salvadoran prison. To the contrary, it specifically tells the recipient that “[y]ou are not entitled to a hearing, appeal, or judicial review of this notice and warrant of apprehension and removal”! In other words, it appears to be an effort to mislead the individual into thinking that no judicial review is available. That likely explains why the Acting SG fails to point the Court to the document itself—namely, that it appears to undermine the thrust of the SG’s argument about the adequacy of the purported habeas alternative.
What’s more, according to declarations filed with the preliminary injunction motion, the Government does not inform the individuals’ immigration attorneys that they are to be removed pursuant to the AEA. And, from all that appears, many or most of the individuals receive the document in question immediately before they are transferred to planes bound for El Salvador, i.e., well before they might have the understanding and wherewithal to file a habeas petition (even if the notice offered them that information—which it decidedly does not (see above)). From the Government’s perspective, this appears to be a feature, not a bug: As Attorney General Bondi explained to Chief Judge Boasberg just Tuesday in her brief in opposition to the motion for a preliminary injunction, “although aliens who are deemed to fall within the scope of the Proclamation may file a petition for habeas challenging that designation, providing an added layer of procedural safeguards, nothing requires the government to delay removal to permit access to habeas on the alien’s preferred timeline.”
Best I can tell, that’s a barely-disguised euphemism to confirm Judge Millett’s alarm—namely, that although the Trump Administration concedes that each of the individuals in theory has a legal right to file a habeas petition to challenge the legality of their AEA removal from the United States to El Salvador, the Administration is going to make every effort to ensure that they are on the planes en route to El Salvador before they might file any such petitions.
On page 1 of her reply brief, the Acting SG tries to assure the Court that “[t]his case is not about whether TdA members subject to removal under the Alien Enemies Act get judicial review; they obviously do.” In light of the Administration’s practices, however, that wouldn’t be “obvious[]” at all if the Court were to vacate the TROs.
2. The merits of the government’s argument about habeas exclusivity depend upon a reference in 5 U.S.C. 704, which was part of Section 10 of the original APA. Section 704 provides that “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review” under the APA. The government argues that because individual habeas petitions offer the prospect of “adequate remed[ies],” Section 704 precludes review under the APA, including the sort of class action the ACLU has brought in this case.*
As I explained in Point 1, above, the habeas alternative here is far from “adequate.” More fundamentally, however, the Government’s Section 704 argument would be questionable even if habeas were an adequate alternative means of challenging the legality of the removals. I’m not going to go deep in the weeds here on this question; it suffices to note that the Acting SG does not even grapple with a couple of Supreme Court precedents that point strongly against the Acting SG’s reading of the APA.
First, the Court held in Shaughnessy v. Pedreiro, 349 U.S. 48, 52 (1955), that Section 10 of the APA itself provided “a right of judicial review of deportation orders other than by habeas corpus.” See also Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (“Beginning in 1952, an alternative method for review of deportation orders, namely, actions brought in federal district court under the Administrative Procedure Act (APA), became available.”) (citing Pedreiro). (Although Congress in 1961 replaced district court APA review with review in a court of appeals as the “sole and exclusive” procedure for challenging deportation orders issued under the Immigration and Naturalization Act, that preclusion statute didn’t affect removals or deportations made pursuant to other statutes, such as the AEA, which remain subject to APA challenge.)
So what about the “for which there is no other adequate remedy in a court” language in APA Section 10? Notably, neither the Acting SG nor any Justice in Pedreiro suggested that that language precluded APA review, notwithstanding the available habeas alternative. Indeed, that language was “‘almost completely ignored in judicial opinions,’” Bowen v. Massachusetts, 487 U.S. 879, 902 (1988) (quoting Kenneth Culp Davis), for decades, until the SG invoked it in Bowen v. Massachusetts. In that case, the Court explained that Congress include the language in question because “[a]t the time the APA was enacted, a number of statutes creating administrative agencies defined the specific procedures to be followed in reviewing a particular agency’s action; for example, Federal Trade Commission and National Labor Relations Board orders were directly reviewable in the regional courts of appeals, and Interstate Commerce Commission orders were subject to review in specially constituted three-judge district courts.” Id. at 903 (emphasis added). “When Congress enacted the APA to provide a general authorization for review of agency action in the district courts,” the Court explained, “it did not intend that general grant of jurisdiction to duplicate th[ose] previously established special statutory procedures relating to specific agencies.” Id. (emphasis added). Yet the Court made clear that Section 704 “should not be construed to defeat the central purpose of providing a broad spectrum of judicial review of agency action.” Id. Citing Pedreiro itself, the Court in Massachusetts further opined that “[a] restrictive interpretation of § 704 would unquestionably, in the words of Justice Black, ‘run counter to § 10 and § 12 of the Administrative Procedure Act. Their purpose was to remove obstacles to judicial review of agency action under subsequently enacted statutes….’” Id. (quoting Pedreiro, 349 U.S. at 51).
The Government argued in Massachusetts that Section 704 should be construed to bar district court review of the agency action in that case because monetary relief against the United States was available in the Claims Court under the Tucker Act. “This restrictive—and unprecedented—interpretation of § 704 should be rejected,” the Court held, “because the remedy available to the State in the Claims Court is plainly not the kind of ‘special and adequate review procedure’ that will oust a district court of its normal jurisdiction under the APA.” Id. Likewise, a habeas action to challenge a deportation order is plainly not the kind of “special” and agency-specific review procedure that ousts a district court of its usual APA jurisdiction under Section 704.
The ACLU understandably cited Pedreiro and Massachusetts in its brief. Perhaps there is some way of distinguishing them. (I haven’t done extensive research on the question.) Yet the Acting SG does not even mention those precedents in her reply brief, let alone make an effort to explain why they don’t foreclose her Section 704 argument.
3. By its terms, the Alien Enemies Act authorizes the removal of enemy foreign nationals pursuant to a proper presidential proclamation if those persons “refuse or neglect to depart” from the United States. 50 U.S.C. 21. Thus, as Boasberg explained, “[b]y its plain terms, … the Act withholds from the President or his officers the authority to remove an alien enemy until that person has been given time to decide whether to depart on his own. …. It follows that summary deportation following close on the heels of the Government’s informing an alien that he is subject to the Proclamation—without giving him the opportunity to consider whether to voluntarily self-deport or challenge the basis for the order—is unlawful.”
The Acting SG doesn’t so much as mention this fundamental aspect of the AEA, which would at a minimum provide covered persons a means of returning to their home nations rather than being involuntarily transferred to a Salvadoran prison.
4. On the merits of the President’s authority to issue the Proclamation (which the Court need not decide in the context of this “shadow docket” application), the most obvious reason why the AEA does not authorize the Proclamation is that Tren de Aragua (the TdA) is not a foreign “nation or government,” and thus the persons identified in the Proclamation, even those who are TdA members, are not “natives, citizens, denizens, or subjects” of the TdA, see 50 U.S.C. 21. In order to get around this deficiency, in his Proclamation President Trump purported to find that the TdA is “conducting irregular warfare against the territory of the United States … at the direction … of the Maduro regime in Venezuela.”
Acting at the direction of a government, however, does not transform an individual or a group into a government itself (let alone a nation).
What’s more, the consensus view among executive intelligence agencies fewer than 20 days before Trump’s proclamation reportedly was that the Venezuelan government does not control TdA. (Note also the CIA Director’s and Director of National Intelligence’s admissions before Congress late last month.) Presumably that explains why DOJ (wisely) has not relied upon Trump’s “at the direction of the Maduro regime” so-called “finding” in the lower courts. Surprisingly, however, the Acting SG, however—particularly in her opening brief—relies heavily on that finding. In response to the ACLU’s flag about the contrary Intelligence Community view, the Acting SG writes in her reply brief that “respondents’ own source reports internal disagreement among the intelligence agencies, Resp. App. 434a, and it is the President’s prerogative to weigh information from those agencies.” What that “source report” says, however, is merely that the FBI “partly dissented” from the CIA and NSA conclusion, in the sense that the FBI believes that TdA “has a connection to the administration of Venezuela’s authoritarian president, Nicolás Maduro, based on information the other agencies did not find credible.” Even that FBI conclusion, apparently based upon dubious evidence, doesn’t support the view that the Maduro regime “directs” TdA’s so-called “irregular warfare” against U.S. “territory.” (From all that appears, the President modified the term “warfare” with the adjective “irregular” because … what the TdA is doing in the United States is not actually waging the sort of war that can trigger an AEA proclamation. That’s another problem with the Trump Proclamation.)
The President surely can “weigh” competing information from agencies, but he doesn’t have a “prerogative” to make a finding of Maduro “direction” of the TdA if there’s no evidence to support it. (If the President were adhering to the legal requirement that proclamations and executive orders must obtain OLC’s approval for form and legality before being signed, see Exec. Order 11030, § 2(b)-(c); 28 CFR § 0.25(b), such a “finding” would never have seen the light of day in the absence of supporting evidence. It appears, however, that the President has systematically disregarded the prescribed OLC role, which thereby facilitates Trump’s issuance of orders and proclamations that are full of false factual statements and that lack adequate legal justification.)
– – – – – – – – – – – –
* The Government also argues that “claims at the historical core of habeas may be brought only in habeas,” and asserts that the claims here are “core” habeas claims. For the reasons explained by the ACLU however, this argument borders on the frivolous because the plaintiffs are not challenging their detention (which antedated the AEA proclamation and that presumably would continue even if the Proclamation is declared invalid) but are, instead, challenging the Government’s authority to remove the individuals to El Salvador without complying with any of the ordinary immigration procedures—something far from the “core” of habeas.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions
