Reckoning the legal and practical significance of the United States deportations case

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The case has a mundane name: J.G.G. et al v. Trump et al.

(The “et al” means “and others”.)

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J.G.G. is one of the five initial Venezuelan plaintiffs in this case, the others known as J.G.O., G.F.F., W.G.H. and J.A.V.

This is what J.G.G. tells us about themselves:

J.G.G and the other four named plaintiffs share a predicament – and also a quality.

The predicament is that all five of them is that they face being deported, not back to Venezuela, but to an industrial scale mega-prison in El Salvador. This is on the basis of a commercial relationship where the United States is paying El Salvador to place deportees in prison.

As you can see from the witness statement quoted above, J.G.G. is already in detention and is going through a legal process for applying for asylum.

The quality which the plaintiffs share is luck – that somehow they were able to lodge a legal case against possible deportation before they were placed on a plane to El Salvador.

There are, it seems, hundreds of others who share that predicament but did not have the foresight or opportunity to lodge a legal claim. On this basis this claim has been broadened by the federal court to protect those others as a class. As such this case is brought on behalf of five named plaintiffs and a class of other plaintiffs.

The lawyers for the plaintiffs do not know how many others are in that class – the plaintiff lawyers don’t even know where they are currently being detained. The US government is refusing to disclose this information. It may even be that some of the class are not even aware there is a claim being brought on their behalf.

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The name of the first named defendant is somewhat familiar, but the president is just one of a number of named defendants, the others appear to include US Immigration and Customs Enforcement (ICE) and other government agencies and individuals.

On 15 March 2025, President Trump made a “proclamation”.

This proclamation should be read in full by anyone wanting to understand this case.

It includes these key passages (emphasis added):

“I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela. […] I proclaim that 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 are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”

[…]

“Alien Enemies shall be subject to removal to any such location as may be directed by the officers responsible for the execution of these regulations consistent with applicable law”

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This proclamation is, however, silent on certain things – such as what process, if any, should be followed in ascertaining whether individuals are indeed members of the TdA gang – and what the due process rights are of those seeking to contest such a determination.

In other words: what happens where an individual such as J.G.G, quoted in the witness statement above, denies they are members of the TdA gang?

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In a remarkable witness statement put into this litigation on behalf of the US government, a senior official of ICE openly admitted that there may not even be any actual evidence (let alone proof) that the deported individuals were members of TdA.

The official said in a sworn statement at paragraph 9:

“9. While it is true that many of the TdA members removed under the [Alien Enemies Act] do not have criminal records in the United States, that is because they have only been in the United States for a short period of time. The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile.”

I wrote about this statement over at Prospect (please click and read here), but it is worth repeating that this paragraph 9 is worth reading carefully.

Notice how the level of evidence deftly transforms from “does not indicate” to “highlights” to “demonstrates”.

If we separate out the sentences and add emphasis, the progression becomes more stark:

“While it is true that many of the TdA members removed under the [Alien Enemies Act] do not have criminal records in the United States, that is because they have only been in the United States for a short period of time.

The lack of a criminal record does not indicate they pose a limited threat.

In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose.

It demonstrates that they are terrorists with regard to whom we lack a complete profile.”

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It is also worth noting that any paragraph in any witness statement which begins “While it is true that […]” means something irregular is perhaps afoot.

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Why did the US government volunteer this information?

The answer must be that they realised that it was going to become obvious to the court that there was no actual evidence against many of the individuals – either the five named plaintiffs or in the plaintiff class generally – and the government wanted to get its justification in first.

Every paragraph in a witness statement – or indeed in any formal court or other legal document – is there (or should be there) for a reason – to perform a particular job. That paragraph 9 was thereby not put into the witness statement by accident: it had to explain something the government realised needed to be explained – or explained away.

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And so we have the US government openly admitting that it is seeking (or has deported) individuals against who there is no actual evidence.

The US government also insists that the relevant individuals are not entitled to any notice of a pending deportation.

In essence: no notice, no evidence, no real opportunity of due or other process.

The individuals will be taken without warning, or opportunity to contest the decision, from the United States and placed on a plane to be put in a mega-prison in a third country.

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When the proclamation was made, the Unites States government raced to make deportations.

It seems three flights were made before the government complied with a “TRO” interim injunction of the court.

At the time, on that Saturday, it seemed as if the US government thought this was some amusing game.

When the President of El Salvador posted “Oopsie Too Late [emoticon]” in response to the news of the TRO, this was happily re-posted by the Secretary of State:

What larks.

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Since the 15th of March the case has developed along three strands.

The first strand is what can be the substantive case – can the US government lawfully do what it has done and is seeking to do? Can the US government rely on the combination of the Alien Enemies Act and the presidential proclamation so as to deport individuals in the manner they are seeking?

Ultimately this would have to be determined at trial – and the verdict of that trial may (and no doubt will) be appealed and appealed, all the way perhaps to the United States Supreme Court.

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The second strand is whether the federal court can even make the TRO injunction. The chief justice of the federal court has set out why that order can and should be made in this accessible and fascinating (and highly impressive) judgment, which you should read.

The US government say the court cannot make this order, and the US government already been appealed to the federal court of appeal, who heard the case yesterday. We are awaiting their judgment.

An informative and revealing audio of that appeal hearing is available on YouTube.

This issue – like the substantive case – can also be appealed all the way perhaps to the United States Supreme Court.

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The third strand is about whether the US government breached the TRO with what we can call the “Oopsie” flights.

This is a distinct and separate issue to that of the second strand. The chief justice is plainly unhappy, but he is yet to make a determination. It was not – at least not directly – part of the case before the appeal court yesterday.

Even if the court finds that there was a breach – and if so, again this can be appealed – it is not clear what practical remedy there is for the poor unfortunates already in the El Salvador mega-prison. They are presumably now outside the jurisdiction of the US federal courts.

Perhaps the US court could order that the US government use its best endeavours to procure the return of the deportees – but that may not be effective.

The federal court may even impose sanctions on the US government for a determined breach – though it is early to speculate what those sanctions could be and how they would be enforced.

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As this case has unfolded, one thing has become evident: just how unprepared the US government was for this case to challenged in court.

This is evident in how the government’s case keeps changing.

It looks as if the US government lawyers are constantly having to improvise the defence.

Indeed, before the court of appeal, the government lawyers even conceded that individuals could challenge a deportation on an individual merits basis, though this would have to be a habeas corpus challenge.

Habeas corpus is the ancient legal right in the United States (and in England) of someone detained to apply to a court for a hearing where their captor has to legally justify the detention.

The problem with this approach is that it is practically useless unless the individual has notice – and also knows which state jurisdiction they are in.

And the US government refuses to accept notice should be given.

And it is also not obvious that such a challenge can be brought on a class basis.

The government, however, hopes that it will be enough to get nod-alongs from conservative appeal judges.

The plaintiff lawyers say that although individual habeas corpus challenges may be theoretically possible, if the TRO is dissolved the US government will rush to start the flights again before any such challenges can be brought.

The plaintiff lawyers are no doubt correct in this.

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Last night the US government resorted to asserting that national security prevented them from telling the federal court details about the three flights that may have breached the TRO.

The impression this latest move gives is that the government is cynically hiding behind state secrets to avoid disclosing information which may lead the court to determine there was a breach.

Other recent news indicates that the US government is not entirely serious about state security.

But even here the government wants to have its cake and eat it: it wants to boast about and publicise the deportation flights – but to also say that the flights are state secrets.

This adds to the sense that the legal position of the US government in this matter simply has not been thought-through.

It seems as if the policy and the first flights were pushed through without being “lawyered” – and that it was then passed to the lawyers to find some legal defence for what was done.

Some may say that perhaps the political optics of the flights are what matters, and not the legalities. But this may not be correct: the impression of the proclamation was that the government wanted mass deportations, not just a few flights on day one.

If so, the (ahem) evolved position of the US government lawyers will hinder this objective – conceding that habeas corpus challenges can be made may not be a huge obstacle, but is still an impediment and one which the government did not seem to realise it may face when the policy was initiated.

The government’s formal position is now that individual deportations can be challenged on their merits (though notice will not be given) – and this was not the position to begin with.

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One further striking thing about the case is – as the judgment of the federal court sets out – that there are other ways of deporting those against there is actual evidence of terrorism. If that was the sincere concern of the US government then that is the route that should be taken.

But the US government want to be able to effectively kidnap individuals and deport them under a commercial arrangement – and at scale.

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This case so far combines a number of constitutional elements – the uses to which a statute can be put, the power of the president, the powers of the courts, and the rights of the individual against the state.

Indeed, it is hard to think of a constitutional element this case does not engage.

And it is also hard to predict exactly how the US federal courts will go with this case – not least because the government’s legal position itself keeps changing.

Taking all these elements and uncertainties together, this case may become one of the most significant constitutional cases in the history of the United States.

Sadly one cannot yet know whether that significance will be positive or negative for the constitutional order of the United States – or for the rights (if any) of the individuals facing brute coercive state power.

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