The first stages of the legal showdown over the Trump administration’s use of a founding-era act to deport alleged gang members is at the Supreme Court.
On Friday, Acting Solicitor General Sarah M. Harris petitioned the Court to lift a temporary restraining order (or TRO) preventing the Trump administration from designating members of the transnational gang Tren de Aragua for deportation under the Alien Enemies Act. (Chief Justice John Roberts has asked for responses to be filed to the Court by 10 a.m. on Tuesday, April 1.)
On March 26, in J.G.G. v. Trump, a divided federal District of Columbia appeals court upheld the TRO issued by District Judge James Boasberg preventing the deportations.
In her petition to the Supreme Court, Harris argued the appeals court and district court had exceeded their powers in issuing and upholding the TRO: “This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country—the president, through Article II, or the judiciary, through TROs. The Constitution supplies a clear answer: the president. The republic cannot afford a different choice.”
Harris also argued that legal proceedings in the case need to be conducted in Texas, and not the District of Columbia, that the district courts could not issue a nationwide injunction, and the lower courts did not fully consider the case’s merits.
The Background in the Case
On Feb. 20, 2025, Secretary of State Marco Rubio designated the Tren de Aragua (or TdA) gang as a foreign terrorist organization. A few weeks later on March 15, President Donald Trump signed a proclamation ordering the deportation of “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States.” The order, “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua,” said that “TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States,” and that the gang was “undertaking hostile actions and conducting irregular warfare against the territory of the United States.” The order further says that the group is operating “in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking.” The order cited the Alien Enemies Act in support of the legality of the deportations.
Five Venezuelans in the United States who had been detained and sent to Texas under the order then filed a class action lawsuit to enjoin the order’s enforcement; they also filed an emergency application for a TRO. Judge Boasberg issued the TRO on March 15, which the government appealed.
In its 2-1 decision, the District of Columbia appeals court denied the emergency request from the government to stay the TRO and let the deportations go into effect.
In the majority opinion, Judge Karen LeCraft Henderson concluded “at this early stage, the government has yet to show a likelihood of success on the merits. The equities favor the plaintiffs. And the district court entered the TROs for a quintessentially valid purpose: to protect its remedial authority long enough to consider the parties’ arguments.” LeCraft also believed the district court needed to modify its TROs to exclude President Trump from the scope other government officials in the case. Henderson also doubted the administration’s broad interpretation of the word “invasion” in the act as applying in the immigration or migration context, as opposed to a hostile action or incursion taken against the territory of the United States by a foreign nation or government.
In his dissent, Judge Justin Walker concluded a stay should have been placed on the TRO, and the proceedings in the case should be heard in Texas, where the five people are in custody. “The problem for the Plaintiffs is that habeas claims must be brought in the district where the Plaintiffs are confined,” Walker said. “For the named Plaintiffs at least, that is the Southern District of Texas. Because the Plaintiffs sued in the District of Columbia, the Government is likely to succeed in its challenge to the district court’s orders.” Moreover, Walker added, “The Government has also shown that the district court’s orders threaten irreparable harm to delicate negotiations with foreign powers on matters concerning national security. And that harm, plus the asserted public interest in swiftly removing dangerous aliens, outweighs the Plaintiffs’ desire to file a suit in the District of Columbia that they concede they could have brought in Texas.”
About the Alien Enemies Act
The Alien Enemies Act was one of several controversial measures taken by the federal government in the context of the 1798 Quasi War with France. French warships had captured numerous American merchant ships during its conflict with Great Britain before Congress rescinded its treaties with France on July 7, 1798. The conflict, which was never formally declared a war, mostly took place in the West Indies.
President John Adams and his Federalist Party, which controlled Congress, sought to take aggressive action to protect American interests. Thomas Jefferson and his supporters argued for a different solution to the conflict. Four laws passed at the start of the conflict in 1798 as wartime measures came to be known as the Alien and Sedition Acts. The Federalist Congress passed the acts over opposition from the Jeffersonian Republicans.
The Alien Enemies Act remains in effect today, and it deals with the status of aliens in the United States during a war. The other acts, including the Sedition Act, expired when Jefferson became president.
The Alien Enemies Act goes into effect “whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government.” (Congress has the exclusive ability to declare a state of war under Article 1, Section 8 of the Constitution, per the Declare War Clause.)
Under the act, the president can publicly declare that “all natives, citizens, denizens, or subjects of the hostile nation or government’ may be detained, relocated, or removed from the United States as alien enemies.” After such proclamation, the Act specifies that “it shall be the duty of the several courts of the United States, and of each state, having criminal jurisdiction” to apprehend aliens for court appearances.
The Alien Enemies Act has been used during three prior conflicts: the War of 1812, World War I, and World War II. Whether it can be used outside of a declared war, or against parties other than a nation or foreign government, has been a matter of recent debate since the act’s clear language restricts its use in narrow ways.
The Supreme Court considered a challenge to the Alien Enemies Act in 1948, in Ludecke v. Watkins. A divided court held that President Harry Truman could still take actions under the act shortly after World War II after it had been invoked against a German national, deferring to the political branches regarding whether a state of war between the United States and Germany still existed.
Scott Bomboy is editor in chief of the National Constitution Center.
