Johnstown, Pennsylvania
CNN
—
The centerpiece of Donald Trump’s hardline attempts to deport undocumented immigrants using a wartime power has been met with resistance by federal courts, including among judges Trump himself has appointed.
The latest, on Monday, was district Judge Stephanie Haines, presiding over a federal court in Johnstown, Pennsylvania. The administration argued to Haines that it should be able to use the Alien Enemies Act to deport migrants from the US with little advance notice.
Haines had already temporarily blocked the Trump administration from sending suspected Tren de Aragua gang members from Venezuela to El Salvador if they were held in a facility in her district, in Central Pennsylvania, where there is a hub for immigration detainees for the northeastern US.
On Monday, she didn’t rule on whether he prohibition should last longer, or say if she would allow the administration to use the wartime law for detainees being moved through Pennsylvania. Yet she asked the Justice Department several questions about why they thought it was sufficient for detainees to have a fewer-than-two-day window to challenge the Alien Enemies Act once they’re told they may be sent to El Salvador.
In addition to Haines, another Trump-appointed trial-level judge, in South Texas, ruled last week that removals under the Alien Enemies Act weren’t lawful.
Judge Fernando Rodriguez Jr., who joined the bench in Texas in 2018, decided the president alone couldn’t deem the US was being threatened or invaded by Venezuelans and declare undocumented immigrants from the country alien enemies. The ruling was the first to block the administration’s use of the law after weighing the case in full.
Though Rodriguez’s decision only applies to migrants held in the judge’s district in south Texas, it became a crucial early sign that a centerpiece of the administration’s hardline immigration policy may be struck down across the country.
Each ruling, especially if they come from Trump-appointed judges, may chip away at the administration’s arguments for using the controversial law.
“All these decisions are pointing in the same direction, which is that the Alien Enemies Act should only be used in time of war or invasion,” Christopher Slobogin, a criminal justice professor at Vanderbilt University Law School, told CNN this week. “The fact that Trump appointees are saying that makes the point especially strongly.”
Two other federal judges this week — one nominated by former President Bill Clinton and another nominated by former President Joe Biden — are poised to make more thorough decisions for migrants who were detained in Colorado and the New York City area. Those judges, Alvin Hellerstein in Manhattan and Charlotte Sweeney in Denver, have already temporarily stopped immigration authorities from removing detainees whom the administration wants to deem alien enemies. A third Democratic presidential appointee to the bench, Gloria Navarro in Nevada’s US District Court, has already blocked the use of the Alien Enemies Act at this time.
And three judges on the federal appeals court overseeing Wyoming, Colorado, Utah, Kansas, Oklahoma and New Mexico have also declined to side with the administration so far. In a brief decision in late April, the three judges, including a George W. Bush appointee and a Trump appointee, said the Trump administration hadn’t shown how they’d be irreparably harmed currently by a lower court’s decision keeping detainees in Colorado inside the US.
“Given the important unresolved issues under the Alien Enemies Act (AEA) and the ruling of the United States Supreme Court that no one in that proceeding be removed under the AEA until further order of that Court, there is no realistic possibility that the government could remove any member of the class from this country” before May 6, the judges, Harris Hartz, Gregory Phillips and Joel Carson of the 10th Circuit Court of Appeals, wrote. The appeal is ongoing.
Judge Wesley Hendrix, another Trump appointee in northern Texas overseeing an Alien Enemies Act case, is continuing to scrutinize the use of the law regarding detainees apprehended in other parts of the country. But the administration has agreed it won’t send the detainees held in the Bluebonnet Detention Center in that district to El Salvador, as it had planned heading into Easter weekend last month, at least while their court petitions are pending.
Lee Gelernt of the ACLU, which is representing immigration detainees in the Alien Enemies Act challenges, said after a court hearing before Trump-appointed Haines in Pennsylvania the presidential appointment of the judge shouldn’t matter.
“Judges, no matter who nominated them, are very serious people” and take the immigration cases seriously, Gelernt said. “We are not going to worry about that.”
All of the Alien Enemies Act cases are building toward a possible major test at the Supreme Court, in what may be one of the most significant fights so far on Trump’s power, the protections of due process, the administration’s execution of Trump’s immigration agenda, and federal courts’ willingness to push back so far in this presidential administration.
“If you have a sufficient number of lower court cases coming to the same conclusion, that’s bound to create momentum at higher-level courts,” Slobogin said. But, “It’s always possible for the Supreme Court to say, ‘All you guys are wrong.’”
The Supreme Court — so far, however, with three Trump appointees and conservatives controlling the majority — in an unusual 7-2 emergency vote on April 19, has put the brakes on the administration’s use of the Alien Enemies Act at this time for those held in Bluebonnet.
Part of the reason why lower courts are still involved and handling these cases piecemeal across the country is because of the Supreme Court previously directing each detainee to bring their own challenge where they are held.
“These have to be brought one at a time until an upper level court decides it,” Slobogin said. “The ACLU is going to file every suit they can file, to make sure this issue is litigated to the fullest and to publicize what’s going on. I’m waiting with bated breath to see what happens.”
