Today, President Donald Trump issued an executive proclamation invoking the use of the Alien Enemies Act to detain and deport members of Tren de Aragua Venezuelan drug gang. A few hours earlier, a federal court issued a temporary restraining order blocking the executive from using the Act to deport five Venezuelans who were apparently about to be deported on that basis.
The Alien Enemies Act was one of the notorious Alien and Sedition Acts of 1798, the only one that is still in force. If courts let the Administration use it, they could potentially detain and deport even legal immigrants with little or no due process. But the Act can only be used in the event of a declared war, or an “invasion” or “predatory incursion” perpetrated by a “foreign nation or government.” As explained in detail in my earlier writings about this issue, illegal migration and cross-border drug smuggling do not qualify as an “invasion” or “predatory incursion.” Even if they did, they aren’t being perpetrated by a “foreign nation or government.” Tren de Aragua is an awful criminal organization. But it is not “invading” the United States, and it is not a “foreign nation o government.”
In my last post about this issue, I explained why drug cartel activities don’t qualify as an “invasion” and why a contrary ruling by the courts would set a dangerous precedent. Among other things, States would be authorized to “engage in war” in response (even without congressional authorization), and the federal government would empowered to suspend the writ of habeas corpus, and thereby detain people – including US citizens – without charges or trial.
Moreover, although the current proclamation is limited to members of Tren de Aragua, if it is upheld there would be little to prevent the administration from using the Alien Enemies Act against other immigrants, including legal ones. Moreover, even under the current proclamation, the lack of of meaningful due process protections under the AEA (there is no right to a hearing, for example) means that some people could be detained or deported merely because the government claims they are members of Tren de Aragua, even if there is no real proof that they are.
In its brief appealing today’s temporary restraining order, the administration takes the position that invocations of the Act are a “political question” that the judiciary has no power to review. If this position prevails, the president could use the AEA against any immigrants from any country anytime he wants, simply by declaring there is a “invasion” going on and the people he seeks to detain and deport are somehow connected to it. Moreover, as noted above, such an unreviewable declaration would trigger other sweeping powers, such as the power to suspend the writ of habeas corpus – even for US citizens.
Much is at stake in the litigation over this issue. And not just for immigrants.
I have previously explained why invocations of the AEA and the definition of “invasion” should not be considered unreviewable political questions here, and here. Here’s an excerpt outlining some of the reasons:
There is no good reason to hold that the definition of “invasion” is a political question, especially if doing so would give the president a blank check to usurp power over… Congress and suspend the writ of habeas corpus anytime he wants. Such a vast concentration of power would surely go against the original meaning, as it would enable the president to engage in arbitrary detention at will – exactly the kind of abuse early Americans had experienced at the hands of the British and sought to prevent in the future. “Invasion” has a clear definition readily susceptible to judicial interpretation…
