In a post last night, I noted that the three-judge D.C. Circuit panel that heard arguments yesterday afternoon in the Venezuelan deportation case appeared skeptical of the Trump administration’s position. That’s because the administration now acknowledges that, at least going forward, Venezuelans who are detained solely under President Trump’s Alien Enemies Act (AEA) proclamation are entitled to challenge the government’s allegation that they are alien enemies as defined by the proclamation — or, in this instance, that they are members of the Tren de Aragua (TdA), the vicious Venezuelan international criminal enterprise that the administration quite plausibly says is a de facto arm of the anti-American Maduro regime. As I contended last night, since the aliens have a right to be heard as a matter of due process, it seems inconceivable that the D.C. Circuit will find that they are not entitled to notice prior to being deported.
This bypasses for now the basic question of whether the president properly invoked the AEA. Since Chief Judge James Boasberg of the federal district court in Washington, D.C., was able to sustain his temporary restraining order (TRO) on due process grounds, there is no need, at least for now, to resolve whether, for AEA purposes, the TdA qualifies as a “hostile nation or government,” or whether it has “perpetrated, attempted, or threatened against the territory of the United States” an “invasion or predatory incursion.”
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