Upping Pressure on Supreme Court, Judge Approves Trump's Use of Alien Enemies Act to Expel Migrants

A federal judge's ruling in Pennsylvania on Tuesday marked the first time a court has decided the Trump administration can invoke the Alien Enemies Act of 1798 to expel Venezuelan migrants to El Salvador's notorious Terrorism Confinement Center, and one policy expert said the ruling "further pressures the Supreme Court to act soon" to determine once and for all whether the mass deportation campaign is lawful.

The ruling by U.S. District Judge Stephanie Haines, an appointee of President Donald Trump in the Western District of Pennsylvania, contrasted with those of federal judges in Colorado, New York, and Texas, who have found Trump's invocation of the Alien Enemies Act exceeds its scope.

The law enables the government to swiftly deport migrants during an "invasion" or "predatory incursion" by a foreign nation. The Trump administration has claimed the Venezuelan street gang Tren de Aragua has ties to the South American country's government—an assertion that U.S. intelligence agencies have not endorsed—and has designated the group a foreign terrorist organization.

Having invoked the Alien Enemies Act in March, Trump has deported more than a hundred Venezuelans accused of being members of the gang to El Salvador.

Haines said in her ruling that she hadn't resolved whether the administration can use the law to remove gang members from the country, and rejected a request by the White House to find that an invasion or predatory incursion could include migration.

But she also disagreed with other courts' rulings that found the Alien Enemies Act relates specifically to military invasions, saying instead that it covers "acts by a foreign terrorist organization."

Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, said her reasoning was "exceptionally weak."

"Her decision, which applies only in the Western District of Pennsylvania, will be appealed to the 3rd Circuit, which will likely put a hold on [Alien Enemies Act] removals out of her district," said Reichlin-Melnick. "But this further pressures the Supreme Court to act soon—potentially before the end of the term."

Reichlin-Melnick and others emphasized that Haines ordered the administration to give migrants far more notice of their impending deportations under the law. The White House had proposed 12-24 hours; Haines ordered officials to provide 21 days' notice in both Spanish and English.

The ACLU last month called on the Supreme Court to rule on the legality of Trump's use of the Alien Enemies Act.

The justices ruled last month that people targeted for removal under the law are entitled to challenge their removal, without providing a timeline.