A federal judge on Saturday temporarily blocked an effort by President Donald Trump to use the Alien Enemies Act of 1798 to deport suspected members of a Venezuelan gang he has accused of “unlawfully infiltrating” the country. He also ordered any deportation flights carrying those subject to the presidential proclamation to return to the United States.
Trump on Saturday invoked the rarely used wartime authority, accusing Venezuelan gang Tren de Aragua of “infiltrating” Venezuelan President Nicolas Maduro’s regime, including its “military and law enforcement apparatus”; perpetuating “irregular warfare” within the United States and using drug trafficking as a weapon against American citizens.
Hours before the White House published Trump’s proclamation, the American Civil Liberties Union and Democracy Forward filed a lawsuit accusing the White House of preparing to imminently deport five Venezuelan men under the Alien Enemies Act.
Chief Judge of the D.C. District Court James E. Boasberg initially issued a temporary restraining order preventing the Trump administration from deporting the five Venezuelans named in the lawsuit for at least 14 days.
Boasberg has now expanded the decision to apply to “all non-citizens in U.S. custody” who are subject to Trump’s proclamation.
The Justice Department appealed the decision Saturday night.
The ruling means all Venezuelan citizens 14 years or older who are members of Tren de Aragua, currently in the country and are not naturalized or lawful permanent residents of the United States are to remain in the United States for 14 days or until further order of the court.
“Any plane containing these folks that is going to take off, or is in the air, needs to be returned to the United States,” the judge said. “Those people need to be returned to the United States.”
The judge’s ruling does not apply to individuals who have already been ordered to leave the country for reasons separate from Trump’s invocation of the Alien Enemies Act, nor does it include individuals who have already landed and disembarked in a foreign country. The judge said once those individuals are off the plane and on the ground in a foreign country, they are no longer in the court’s jurisdiction.
The judge scheduled another hearing on Friday, March 21, for further arguments.
“Today was a horrific day in the history of the nation, when the President publicized that he was seeking to invoke extraordinary wartime powers in the absence of a war or invasion and claiming virtually unlimited authority to remove people from the country,” Skye Perryman, the president of Democracy Forward, said in a statement. “But, tonight the rule of law prevailed. The government has been forced to turn planes around and our lawsuit — filed in the very early hours this morning — has resulted in broad relief.”
During a hearing on Saturday afternoon, the judge was assured by Justice Department lawyers that the five Venezuelans ordered to remain in the country were not currently on deportation flights.
Attorneys for the nonprofit groups challenging Trump’s order told the judge they were aware of flights that had taken off from Texas with other Venezuelans on board, heading to both Honduras and El Salvador.
The judge in response warned the government that it must comply with the court’s order.
“This is something you need to make sure is complied with immediately,” Boasberg said. “These folks are going to be sent to Salvadorian and Honduran prisons, which are not going to be terribly receptive to Venezuelans.”
A source familiar with the migrant deportation flights told NBC News that two flights with Venezuelans onboard were in transit today and will be turned around following the judge’s order.
The Alien Enemies Act of 1798 enables the president to quickly detain and deport immigrants from a “hostile” nation, either during times of “declared war” or when a foreign government perpetuates an “invasion” or “predatory incursion” into the United States. Only Congress has the constitutional power to declare war.
“Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA [Tren De Aragua],” Trump’s proclamation reads. “The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.”
Legal experts have challenged Trump’s interpretation of the Alien Enemies Act, arguing that it was designed only to be used in times of war, and invoking it to deport immigrants could be unlawful.
Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School, wrote earlier this year that “illegal migration and cross-border drug-smuggling do not qualify as ‘invasion’ and certainly not as an invasion by a ‘hostile nation or government.’”
According to an analysis of the law by the Brennan Center for Justice, “the Alien Enemies Act permits the apprehension, restraint, securing, and removal of noncitizens. It also explicitly grants the president the power to determine when and how to do so.”
Secretary of State Marco Rubio last month designated Tren de Aragua as a foreign terrorist organization after Trump signed an executive order creating a process for him to do so.
Trump in the order accused the group of engaging in a “campaign of violence and terror” and flooding “the United States with deadly drugs, violent criminals, and vicious gangs.” In the same order, Trump directed federal officials to “make operational preparations” for the “implementation” of the Alien Enemies Act.
Trump’s invocation of the Alien Enemies Act fulfills a pledge he made on the campaign trail to use the law to target suspected gang members, drug dealers and cartel members.
“I’ll invoke immediately the Alien Enemies Act to remove all known or suspected gang members, the drug dealers, the cartel members from the United States, ending the scourge of illegal alien gang violence once and for all,” Trump said during a 2023 campaign speech in Dubuque, Iowa.
Trump is the first president in nearly a century to invoke the Alien Enemies Act, and the first to do so outside of a major military conflict. It was last invoked in 1941 by President Franklin Delano Roosevelt, who used the law to target people of Japanese, German and Italian descent during World War II, an act that the United States has since apologized for.
Democratic lawmakers have tried for years to repeal the Alien Enemies Act, with Rep. Ilhan Omar, D-Minn., and Sen. Mazie Hirono, D-Hawaii, introducing legislation in January to do so.
“We cannot allow antiquated laws to continue enabling discriminatory practices that harm immigrant communities,” Omar said in a January statement.
