The D.C. Circuit today declined to stay a district court temporary restraining order that prevents the Trump Administration from deporting certain Venezuelan citizens under the Alien Enemies Act. The ruling means that the district court TRO remains in effect pending further litigation in the case, although the government is likely to ask the Supreme Court to intervene.
Recall that President Trump invoked the AEA to remove "all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua]" and who are not "naturalized or lawful permanent residents of the United States." The AEA says,
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.
The AEA has only been invoked three times in our nation's history: in the War of 1812, in World War I, and in World War II.
Five Venezuelans sued to halt enforcement of President Trump's proclamation and filed an emergency application for a TRO. The district court issued a TRO for the five plaintiffs, then provisionally certified a class of all noncitizens in U.S. custody who were subject to the proclamation and issued a second TRO to cover the class. (The government's compliance or noncompliance with the court's TROs is also subject to dispute. Most recently, the government invoked the state secrets privilege in response to the court's order for more information.)
The government filed an emergency motion to stay the TRO with the D.C. Circuit. This afternoon, the D.C. Circuit denied the motion. The three judges wrote separately.
Judge Henderson argued that the court had jurisdiction to consider the emergency motion; that the district court had jurisdiction to issue the TRO; that the AEA issue was not a nonjusticiable political question; and that the balance of factors weighed against a stay (including that the plaintiffs were likely to succeed on the merits of their AEA claim).
Judge Millett argued that the court lacked jurisdiction to consider the emergency motion (because TROs aren't ordinarily appealable), and in any event that the AEA issue was not a nonjusticiable political question, that the district court had jurisdiction, and that the stay factors weighed against a stay.
Judge Walker dissented and argued that the court had jurisdiction to consider the emergency motion, and that the district court lacked jurisdiction, because the plaintiffs had to file habeas petitions where they are confined, in Texas.