President Donald Trump’s administration on Friday requested that the U.S. Supreme Court intervene in the contentious legal dispute surrounding the application of the Alien Enemies Act, the wartime power that he utilized to swiftly deport suspected members of a Venezuelan gang.
The Supreme Court is further thrown into Trump’s maelstrom by the emergency appeal, which requests that the justices reverse an order issued by US District Judge James Boasberg prohibiting additional deportations under the act.
At the heart of a heated conflict between the White House and the judiciary, it is arguably the most important case currently pending on the court’s docket pertaining to his second term, CNN reported.
“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country – the President, through Article II, or the judiciary,” Acting Solicitor General Sarah Harris told the Supreme Court. “The Constitution supplies a clear answer: the President. The republic cannot afford a different choice.”
The Trump administration’s argument, like that of other recent appeals, focused largely on grievances about subordinate courts obstructing his path and issuing temporary orders that, while not resolving the president’s power challenges, have at least temporarily put some of his agenda on hold.
The case concerns Trump’s use of the Alien Enemies Act of 1798, a wartime law that grants him extensive authority to target and deport undocumented immigrants, on March 15. In times of war or when an adversary tries a “invasion or predatory incursion,” the law gives that authority.
More than 200 Venezuelans were loaded onto three planes and flown to El Salvador, where they are being held in a maximum security prison, shortly after Trump invoked the law. Since then, the government has stated that some of those individuals were deported under laws other than the 18th Century Act. The men were allegedly connected to the Venezuelan gang Tren de Aragua, according to the Trump administration.
Days after Chief Justice John Roberts delivered a rare rebuke of Trump’s proposal that Boasberg be impeached for his handling of the case, the case makes its way to the high court.
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in a statement released by the Supreme Court. “The normal appellate review process exists for that purpose.”
The administration was sued for its application of the law by five Venezuelans who are still in the nation and being detained by the Department of Homeland Security. President Barack Obama nominated Boasberg to the bench, and while he considers the case, he temporarily barred the administration from deporting any more people under the act, either against the five plaintiffs or against anyone else in their circumstances.
Notably, Boasberg’s order did not prevent the administration from detaining immigrants under the act or from deporting those same individuals under other laws.
Trump, however, made an immediate appeal.
On Wednesday, the DC Circuit Court of Appeals decided 2-1 that Boasberg’s orders prohibiting Trump from using the broad wartime authority could remain in effect while the legal challenge is pending. President George H.W. Bush nominated one judge to the majority, and Obama nominated another. Trump is appealing that decision to the Supreme Court.
In a lengthy concurrence, US Circuit Judge Karen Henderson provided the kind of textualist analysis that many conservatives on the court might find appealing. She dismantled Trump’s claims that the flow of migrants across the US-Mexico border amounts to an invasion and that courts cannot examine how the law is being applied.
“The term ‘invasion’ was well known to the Fifth Congress and the American public circa 1798,” she wrote. “The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense.”
Trump’s deputy chief of staff for policy, Stephen Miller, and other administration officials seem to have taken that ruling to mean that a court cannot examine how a president carries out the law.
However, in her concurrence on Wednesday, Henderson drastically reduced that reading.
“The elected branches – not the unelected bench – decide when a war has terminated. That is a question of fact for elected leaders,” she wrote. “That does not mean that courts cannot pass on the legal meaning of statutory terms.”