The plaintiffs filed their response to the Administration's application for Supreme Court review in the Alien Enemies Act Case, and the Administration filed its reply.
Recall that the district court issued a temporary restraining order, halting the Administration's effort to remove certain Venezuelan citizens to El Salvador. The D.C. Circuit declined to stay the TRO, and the Trump Administration asked the Supreme Court to intervene. We posted most recently here. The full docket for the case is here.
Yesterday the plaintiffs filed their response, and today the Administration filed its reply.
In their response, the plaintiffs argue that the TRO isn't an appealable order, that the Administration failed to establish irreparable harm, that the Administration is wrong to claim that the plaintiffs could only file a habeas petition in Texas (and not the case here), and that the Administration isn't substantially likely to prevail on the merits.
On that last point, the plaintiffs argued that their claims are justiciable, and that the Administration isn't likely to prevail on its AEA justification (or that the President lacks exclusive and preclusive Article II power to deport the plaintiffs, irrespective of the AEA). To underscore the stakes, the plaintiffs write,
The Government reportedly has already sent more than 130 Venezuelan men to El Salvador, including some whom it seemingly sent in violation of the district court's March 15 order. They have been confined, incommunicado, in one of the most brutal prisons in the world, where torture and other human rights abuses are rampant. And were there any doubt about how these men will be treated, the Salvadoran President released a video, re-posted by President Trump and Secretary Rubio, showing them being brutalized immediately upon departing. The Salvadoran President has stated, moreover, that the men remain imprisoned there for the remainder of their lives, without access to the outside world. And it is becoming increasingly clear that many (perhaps most) of the men were not actually members of Tren de Aragua, and were instead erroneously designated as such in large part because of their tattoos, a wholly unreliable means of identifying membership in a particular gang. The TRO is thus essential to ensure that more individuals who have no affiliation with the gang will not be sent to a notorious foreign power.
The implications of the government's interpretation and execution of the AEA are staggering. . . . The Court should deny the government's extraordinary request to vacate a TRO that would allow the government to immediately begin whisking away anyone else it unilaterally declares to be a member of a criminal gang to a brutal foreign prison.
In its reply, the Administration doubles-down on its argument that the plaintiffs should have filed habeas petitions in Texas, not the Administrative Procedure Act claim in D.C. As to the President's authority under the AEA, it argues that the President validly concluded "that TdA is effectively an arm of the Maduro regime" and "that TdA is 'conducting irregular warfare and undertaking hostile actions against the United States' by illegally entering and committing brutal crimes as a means of 'destabilizing' the United States and terrorizing its citizens."