So, both procedurally and substantively, Trump’s Presidential Proclamation fails to satisfy the AEA. It is unlawful. Hence, Hellerstein enjoins anybody in or connected to the executive branch from enforcing Trump’s Proclamation. 13/

Also like Fernandez, Hellerstein concludes that the plain meaning of the AEA’s invasion and incursion language rules out Trump’s classification of TdA’s conduction as either. “TdA may well be engaged in narcotics trafficking, but that is a criminal matter, not an invasion or predatory incursion.” 12/

Hellerstein notes that Trump’s Proclamation empowered the executive branch beyond what the AEA, and therefore Congress, authorizes. The Proclamation rewrites language from the AEA saying that presidential proclamation can make aliens “liable to removal.” In contrast, Trump’s proclamation made people “subject to immediate removal.” 10/

… even though it is a big hassle for the executive branch to have to file individual complaints in court against people it classifies as deportable aliens under the AEA and then prove in a hearing that the classification is appropriate, that is what a guarantee of due process requires in these circumstances. 9/

Hellerstein applies a test from Mathews v. Eldridge, a pivotal due process U.S. Supreme Court case from 1976, to assess whether the Constitution and the AEA require full scale judicial involvement in deportations pursuant to the AEA. Because the risk of erroneous deprivation of liberty via imprisonment is so serious, Hellerstein answers in the affirmative. In other words… 8/

“The notice proposed by Respondents does not moot this issue. Petitioners have not been given notice of what they allegedly did to join TdA, when they joined, and what they did in the United States, or anywhere else, to share or further the illicit objectives of the TdA. Without such proof, Petitioners are subject to removal by the Executive’s dictate alone, in contravention of the AEA and the Constitutional requirements of due process.” 7/

This is fascinating. At least one other judge invalidated Trump’s AEA proclamation solely on the ground that there has been no invasion of or incursion into the U.S. by the military forces of a foreign government. That judge, in the Southern District of Texas, did not address the part of the AEA that explicitly assigns to the federal judiciary a notice and hearing role. 6/

Hellerstein focuses much of his opinion on the Trump executive branch failing to abide by the requirement imposed by the AEA: a requirement to file in an Article III court (the type of court established by the Constitution as opposed to an immigration court ) a complaint against specific alleged aliens. This is what would count as notice. Court would then hold hearing to assess sufficiency of cause for removal. 5/

Hellerstein points out that the Trump executive completely ignored the provision of the Alien Enemies Act that imposes a duty on the federal judiciary to ‘“give a “full examination and hearing” to the Executive’s “complaint” against the alien, and to order the alien’s removal only upon “sufficient cause appearing.” 50 U.S.C. § 23.’ 4/

Hellerstein quickly cuts to the plight of the more than 200 people Trump et al removed to El Salvador “with faint hope of process or return.” They were taken to CECOT, “there to remain, indefinitely, in a notoriously evil jail, unable to communicate with counsel, family or friends.” 3/