Trump Admin Asks Supreme Court to Vacate Orders Stopping Deportations

Trump Admin Asks Supreme Court to Vacate Orders Stopping Deportations

The Department of Justice asked the Supreme Court to vacate the orders stopping President Donald Trump from using the Alien Enemies Act (AEA) to deport Venezuelans to El Salvador.

“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, through TROs [temporary restraining orders],” wrote acting Solicitor General Sarah Harris.. “The Constitution supplies a clear answer: the President. The republic cannot afford a different choice.”

Chief Justice John Roberts requested a response by 10 AM ET on April 1.

On March 15, U.S. District Judge James Boasberg of the D.C. District Court paused the deportations to review the case’s merits.

Boasberg said he has “serious legal questions about Trump’s rationale for invoking the 1798 law — used only three times in American history — by labeling the criminal gang Tren de Aragua the equivalent of a foreign government.”

Harris listed many ways in which Trump’s administration will likely succeed on the merits, but one sticks out the most: “At a minimum, the district court could not grant nationwide relief.”

First of all, the respondents went to the wrong court with the wrong claim.

They used the Administrative Procedures Act (APA) when those subjected to the AEA can only receive “limited judicial review through habeas.” District Judge Henderson broke the tie with her concurrence, but “inexplicably ‘assume[d]‘ jurisdiction, then refused to decide whether respondents could bring APA claims.”

Yeah, wrong jurisdiction:

To begin, respondents brought the wrong claims to the wrong forum. The AEA buttresses the President’s Article II authorities over national security by expressly empowering him to remove alien enemies—a power that this Court has held is largely unreviewable. Ludecke v. Watkins, 335 U.S. 160, 165-166 (1948). The exception is for habeas claims challenging enemy-alien detention. The government agrees that a cause of action would be available to respondents. But because their “claims sound in habeas,” they must be brought where they are held, in Texas. App., infra, 78a (Walker, J., dissenting).

The respondents should have filed where they are held: Southern District of Texas.

Judge Walker of the district court said in his dissenting opinion that the case should be in Texas and “affirmatively interfered with an ongoing, partially overseas, national-security operation.”

Harris expands on the inability to grant nationwide relief later in the brief:

Even if the district court could review respondents’ APA claims, it lacked authority to grant relief to a nationwide class of members of a foreign terrorist organization. The court provisionally certified a class of “[a]ll noncitizens in U.S. custody who are subject to the” Proclamation “and its implementation.” App., infra, 148a. But that highly truncated class-certification determination was highly improper. The court certified a non-ascertainable class consisting of anyone in U.S. custody who might be subject to the Proclamation—based on allegations by putative class members who claim they do not belong to TdA and thus cannot possibly represent a class whose defining characteristic is being subject to a Proclamation directed at TdA members. By awarding relief to an amorphous nationwide class, the court effectively circumvented equitable limitations on universal relief in a sensitive national-security context. If nothing else, this Court should vacate the district court’s order granting classwide relief and limit any surviving order to the named plaintiffs only.

“The order here has effectively blocked the Executive from implementing the Proclamation against anyone currently in U.S. custody, throughout the entire Nation—and did so on the very day the Proclamation was published,” argued Harris. “As the government has explained elsewhere, universal injunctions that extend to non-parties exceed ‘the power of Article III courts,’ conflict with ‘longstanding limits on equitable relief,’ and impose a severe ‘toll on the federal court system.'”

Harris claimed the universal injunction in the case “is all the more troubling here because its aim is to hamstring the President in responding to a significant national security threat—an impermissible intrusion on the President’s Article II powers.”

Harris pointed out that the court “certified a class without conducting the ‘rigorous analysis’ that Federal Rule of Civil Procedure 23 demands.” Harris wrote:

The court offered only the conclusory statement that “class certification is warranted under Federal Rule of Civil Procedure 23(a) and 23(b)(2).” Ibid. The court never explained why the Rule 23(a) factors were satisfied, let alone in writing. See ibid. Nor did the court satisfy other procedural requirements of Rule 23, such as the requirement to define “the class claims, issues, or defenses,” the requirement to “appoint class counsel under Rule 23(g),” or the requirement to “direct appropriate notice to the class.” Fed. R. Civ. P. 23(c)(1)(B), (2).

Rule 23(a) states:

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

Rule 23(b)(2) states:

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

One argument against using 23(a) is “too much variation” in the class’s definition to satisfy the requirements:

Individuals who claim they are not TdA members may be more interested in challenging the procedures used to designate them as such, whereas individuals who are TdA members might be more interested in challenging the President’s authority under the Alien Enemies Act. See Amchem, 521 U.S. at 626 (plaintiffs suffering illness from exposure to defendant’s products could not adequately represent plaintiffs only at risk of future illness). The class as defined also includes aliens already subject to detention and removal under other authorities, such as the INA [Immigration and Nationality Act]. Cf. App., infra, 175a. Such aliens cannot claim to have suffered the same type of injury (if any) as aliens who are removable solely by virtue of the Proclamation.

Harris reminds SCOTUS that previous decisions of the Court ruled that “Rule 23(b)(2) ‘does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.'”

I think the “wrong claim, wrong court” is the Trump administration’s strongest argument.

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