Lee Kovarsky, D. Theodore Rabe, and Steve Vladeck on Class Actions and the Alien Enemies Act Litigation

I have previously written about how multiple lower courts have certified habeas classes in Alien Enemies Act deportation cases, and doing so may be the only way to ensure meaningful due process for detained migrants threatened with deportation. But I am not a class action expert, and am therefore limited in what I can say about the case for class action certification in habeas cases.

Legal scholars Lee Kovarsky and D. Theodore Rabe (both at the University of Texas) are leading experts on habeas and class action issues, and their recent Lawfare article on “Class Actions and the Alien Enemies Act” is a must-read for anyone interested in these issues. Here is an excerpt:

Removal under the Alien Enemies Act (AEA) raises profound questions of government power, due process, and human dignity—so people sometimes wonder why skirmishes over class action certification are consuming so much legal energy. The answer is that justice is often bound up with procedure. And a federal court in the Northern District of Texas (NDTX) just created a major procedural problem when it refused to certify an AEA detainee class.

In what follows, we want to explain: (1) why AEA detainee class certification is so important and (2) why some of the ideas in the NDTX order are so troubling. (In the interests of disclosure, we have co-authored and signed an amicus brief on behalf of class action and habeas professors in this case.)

The Trump administration is trying to remove noncitizens who it alleges to be members of a Venezuelan gang, Tren de Aragua (TdA). The president invoked AEA removal authority in a proclamation asserting that TdA is an arm of the Venezuelan government that is “inva[ding]” or making a “predatory incursion” into the United States. The Supreme Court later held, in J.G.G. v. Trump, that AEA detainees are entitled to challenge the legality of their removal under the Act by seeking a writ of habeas corpus. The catch: Under the “immediate custodian rule,” detainees must ordinarily mount habeas corpus challenges in the federal districts where they are detained. In other words, the AEA detainees can’t all sue together in DC; instead, they have to bring their suits in the districts where they are being held.

But that doesn’t mean they have to bring their habeas challenges on an individual basis. Nothing the Supreme Court said in J.G.G. forecloses seeking habeas relief through a class action lawsuit, and no matter where the litigation takes place, class treatment remains an indispensable procedural protection. In a class action, one or more named plaintiffs sues on behalf of a class of people who have similar legal claims. And the court can certify a class action to decide common questions that apply to the class as a whole. Class actions avoid inconsistent judgments and other inefficiencies that plague individual adjudication of common issues. They can also guarantee legal representation to vulnerable class members who would otherwise have limited access to counsel.

Since they published that article on May 15, the Supreme Court (a day later) extended injunctive relief to a “putative class” of Alien Enemies Act detainees (I wrote about the case here). Prof. Steve Vladeck (Georgetown) has an insightful piece on the significance of this aspect of the Court’s ruling:

I know it’s wonky, but the majority’s holding that plaintiff classes can be provisionally certified by district courts for purposes of providing temporary relief even without resolving the likelihood of full class certification is going to have an impact in lots of cases—well beyond the AEA. That impact may well help to mitigate the damage caused by a ruling in the birthright citizenship cases that does away with, or even narrows, nationwide injunctions. But it is almost certainly going to have significant effects in other contexts, too—and not just in challenges to Trump administration policies. I remain very much not a fan of the justices reaching significant holdings in rulings on emergency applications. But here’s one, at least, that might actually do some good on the ground.

I largely agree. But I would caution that temporary relief for a “putative class” is not the same thing as permanent relief for an actually certified class. And even the potential availability of full class certification is not a fully adequate substitute for nationwide injunctions.

In previous writings, I have covered the many substantive flaws with Trump’s invocation of the AEA as a tool for deporting migrants in peacetime (see, e.g., here, here, and here). I have substantially more expertise on these issues than on the procedural questions involving class actions.

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