This is an automated archive made by the Lemmit Bot.

The original was posted on /r/keep_track by /u/rusticgorilla on 2025-04-08 11:14:21+00:00.

If you are in the position to support my work, I have a patreon, venmo, and a paypal set up. Just three dollars a month makes a huge difference! These posts will never be paywalled.

Subscribe to Keep Track’s Substack (RSS link) or monthly digest. Also on Bluesky.

Today is the 78th day of Trump’s second term in office. The government is snatching people off the streets and shipping them to foreign prisons from which, the government claims, they can never be extracted. And the conservative majority of the U.S. Supreme Court appears ready to bless the entire operation.

Alien Enemies Act

As Keep_Track laid out in last month’s post, Judge James Boasberg issued a temporary restraining order (TRO) preventing the administration from deporting people under the AEA on March 15. He ordered any planes transporting immigrants removed under the Act to turn around and return to the U.S. immediately. The administration did not comply, ultimately imprisoning 238 Venezuelans and 23 Salvadorans at the notorious CECOT prison in El Salvador under a deal worked out between Secretary of State Marco Rubio and President Nayib Bukele.

The lawsuit has been advancing on multiple fronts: (1) contempt hearings conducted by Judge Boasberg, (2) preliminary injunction hearings before Judge Boasberg, and (3) appeals of Judge Boasberg’s temporary restraining order.

Contempt

Judge Boasberg is moving forward on hearings that will determine whether he holds the government in contempt for violating his order to turn the March 15 flights around. The administration has refused to provide the court with details about the flights, invoking the state secrets privilege to protect “national security” interests. “Disclosure of the information requested by the Court,” the administration claims, “could cause the foreign State’s government to face internal or international pressure, making that foreign State and other foreign States less likely to work cooperatively with the United States in the future, both within and without the removal context.”

This is a case about the President’s plenary authority, derived from Article II and the mandate of the electorate, and reinforced by longstanding statute, to remove from the homeland designated terrorists participating in a state-sponsored invasion of, and predatory incursion into, the United States. The Court has all of the facts it needs to address the compliance issues before it. Further intrusions on the Executive Branch would present dangerous and wholly unwarranted separation-of-powers harms with respect to diplomatic and national security concerns that the Court lacks competence to address. Accordingly, the states secrets privilege forecloses further demands for details that have no place in this matter…

In other words, because Trump won “the mandate of the electorate,” he is not obligated to defend his actions to the judiciary, even when he violates a court order.

As incredulous as he may be of Trump’s refusal to provide basic information about the operation, Boasberg agreed that the publicly available information regarding the flights is enough to rule on probable cause of contempt. Online flight trackers, combined with Trump’s social media posts and President Bukele’s social media posts, provide plenty of evidence on the matter (further undermining the administration’s claim that the information is so sensitive it can’t even be disclosed to a judge in a closed courtroom). Boasberg is expected to announce as soon as this week if he will proceed with holding the government in contempt, which could include sworn declarations from Trump administration officials.

Preliminary injunction

The ACLU entered a motion for a preliminary injunction on March 28, arguing that the government’s invocation of the Alien Enemies Act is unlawful because “there is neither an ‘invasion or predatory incursion’ nor such an act perpetrated by a ‘foreign nation or government.’”

In the absence of an injunction, the government will be free to send hundreds more individuals, without notice, to the notorious Salvadoran prison where they may be held incommunicado for the rest of their lives. The government will suffer no comparable harm given that this Court has not prohibited it from prosecuting anyone who commits a criminal offense, detaining anyone under the Act or other authority, or removing anyone under the immigration laws, and the government has already conceded that some form of judicial review is appropriate. A preliminary injunction is warranted to preserve the status quo.

• Documents obtained by the ACLU revealed that ICE is disappearing people to a Salvadoran black site based on a scoring system that classifies people as “Alien Enemies” based on nothing more than tattoos and social media posts. Moreover, seven of the nine tattoos that official ICE documents claim are indicative of Tren de Aragua membership were, in fact, taken from random web pages and tattoo forums online. Most of the people who got these tattoos are not Venezuelan; one is British, one is Turkish, one is Colombian, and one appears to originate in a Thai tattoo shop.

The government argued, again, that the president’s power to unilaterally remove and imprison immigrants is unreviewable by the courts: “…courts have held for over a century that the President’s authority and discretion under the [Alien Enemies Act] is not a proper subject for judicial scrutiny…Indeed, the D.C. Circuit has described the statute as conferring ‘[u]nreviewable power in the President,’ which it characterized as the ‘essence of the Act.’”

The Court lacks power to review the President’s Proclamation for another reason as well: Whether the AEA’s preconditions are satisfied is a political question committed to the President’s discretion, no different from the President’s determination to trigger the Constitution’s Invasion Clause (Article IV, section 4). Any challenge to that determination is therefore foreclosed.

A hearing to determine whether Boasberg will grant a preliminary injunction is set for today, April 8, at 3 pm Eastern (though it is unlikely it will still occur given the Supreme Court’s intervention).

Appeals

Court of Appeals

The Department of Justice (DOJ) appealed Judge Boasberg’s March 15 temporary restraining order (and subsequent class certification) to the Court of Appeals for the the D.C. Circuit, drawing a panel made up of Trump appointee Justin Walker, Obama appointee Patricia Millett, and G.H.W. Bush appointee Karen Henderson. The government argued, yet again, that Trump’s power to designate people as Alien Enemies and order their removal is unreviewable by the courts. However, if the judges find it reviewable, the DOJ continued, the lawsuit should be dismissed anyway because the proper method of challenging detentions would be filing habeas claims in Texas, where the ACLU’s clients are being held (nevermind that class members were removed without the chance to file habeas claims).

The panel ruled 2-1, with Walker dissenting on jurisdictional grounds, to deny the government’s request to stay Boasberg’s temporary restraining order.

• Judge Henderson spent five pages excoriating the administration’s basis for invoking the Alien Enemies Act, writing that “the government misreads the text, context and history” of the law. “The theme that rings true is that an invasion is a military affair, not one of migration,” she wrote.
• Judge Millett tore apart the administration’s argument that each plaintiff should be required to file a habeas claim in the district in which they are being held (for many, Texas), saying that “the government has confessed that its preference that Plaintiffs use habeas corpus to challenge their eligibility for AEA removal is a phantasm: The government’s position at oral argument was that, the moment the district court TROs are lifted, i…

Content cut off. Read original on https://old.reddit.com/r/Keep_Track/comments/1jub0l5/the_supreme_court_allows_trump_to_use_alien/