Dear Reader,

On Saturday, President Trump issued an executive order invoking the Alien Enemies Act of 1798 to remove (he claims) members of the Venezuelan gang, Tren de Aragua (TdA), from the U.S. In so doing, Trump is trying to use the post 9/11 terrorism playbook for immigration. As a policy issue and as a national security threat, illegal immigration is very different, factually and legally, from terrorism, which would ordinarily set this E.O. up to be just another of Trump’s policies that will fail in the courts. The problem is, under the executive authority the Trump administration purports to claim, Trump may try to ignore or sidestep the courts altogether, giving him immense “wartime” authority (in peacetime) without any judicial check.

So a quick primer: The Alien Enemies Act of 1798 is a law that was passed during the “quasi-war” with France that states the following:

[W]henever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,…all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.

Used during the War of 1812 and the two World Wars, the purpose of the act is to give the president sweeping, and seemingly unilateral, authority to remove foreign nationals of a country with which the U.S. is at war, during the existence of the conflict. The basic idea is that, when nation-states go to war with each other, their citizens owe their allegiance to their respective countries, and hence foreign nationals of the enemy may pose a threat to the U.S. as possible spies or saboteurs. (Note that while the Alien Enemies Act may have been the basis for interning or expelling Japanese nationals during World War II, it was not the basis for the internment of Japanese-American citizens; that was an executive order issued under President Roosevelt’s Article II Commander-in-Chief authority, which authorized military commanders to create “exclusion zones” within the U.S.)

As University of Texas professor Steve Vladek wrote in this prescient 2007 law review article, there are few precedents on how broad the president’s powers are under the law – precisely because it has been used so infrequently. Professor Vladek’s article analyzed how the courts’ approach to the Alien Enemies Act should apply to the Bush administration’s war on terror. Although President Bush didn’t invoke or use the Alien Enemies Act (because he had a more recent, and even vaguer congressional approval in the 2001 Authorization for the Use of Military Force), he did purport to have the unilateral authority to designate people as “enemy combatants” who would be outside the jurisdiction of the courts (which was one of the goals in sending these individuals to Guantanamo Bay, Cuba). I’ll skip the extended explanation of the legal wrangling around court jurisdiction in both of these contexts, but the upshot is that both the general thrust of court decisions under the Alien Enemies Act and the Supreme Court’s decisions about the Bush administration’s policies carved out a role for the courts: Although a great deal of deference is offered to the executive branch in matters of military necessity, individuals have, at the very least, a right to contest their “enemy” status in court.

Which brings us to the Trump order. Here is how the “enemy” is defined:

[A]ll 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.

The definition purports to be narrow – only members of the TdA gang, which the Trump administration has officially designated as a foreign terrorist organization (FTO). Except that there is no explanation of how the administration will determine who fits this category. Based on the Trump administration’s actions so far, it doesn’t seem like they have any intention of doing a very searching inquiry into whom they are deporting: Two planes holding hundreds of Venezuelan migrants – who had no court hearings to contest or determine their status – were flown to El Salvador even as their lawyers sought a temporary injunction preventing Trump’s order from taking effect. (The TRO was granted on Saturday, along with a verbal order from Judge Jeb Boasberg for the flights to be immediately halted or turned around.)

Trump’s invocation of the Alien Enemies Act has an even bigger problem. You’re probably wondering, how does a wartime authority apply when we aren’t at war? Well, if you read the relevant language carefully, it can apply during an “invasion” – which is how the Trump administration is characterizing the influx of migrants across the border. (Note that there is also no clear link in the executive order as to how this “invasion” is directly linked to the Venezuelan government, as the statute also requires.)  Legal scholars note that “invasion” has been understood to mean a hostile armed incursion into United States territory – not simply an illegal crossing, even by criminals bringing in contraband (like smuggling people and drugs). In other words, the Framers used the word “invasion” in a military sense, either by a foreign state or a group of armed individuals seeking to attack the U.S.  Working in Trump’s favor, though, is that courts also don’t tend to second guess the executive branch’s assessment of these kinds of national security threats (which is exactly the kind of deference that led the Supreme Court to rubber-stamp Japanese internment).

That means the big question is whether courts will resolve the factual question of whether the illegal entry of TdA members into the U.S. does, in fact, constitute an “invasion” and/or the legal question of how much deference is owed to a president’s determination that it is. The answer(s), which may end up being decided by the pro-executive branch Supreme Court, will have far reaching consequences. That’s because the word “invasion” appears four times in the Constitution, and two of them explicitly trigger even greater executive authorities. One allows the President to call forth the militia to repel the invasion. The other allows for the suspension of habeas corpus, a core constitutional right that requires the government to justify the legal basis for detaining people. As George Mason Law Professor Ilya Somin notes, if illegal immigration constitutes an “invasion,” – a perpetual threat since there are always people crossing the border illegally – Trump would have an ongoing legal basis to act on these other expanded authorities, which we can assume he would do without restraint.

[I’m not exactly sure what a “predatory incursion” is, which is also listed in the Alien Enemies Act, but I suspect it would be something like the Nazi saboteurs who secretly landed on U.S. shores during World War II.]

And (sorry guys) it doesn’t end there. For now, Trump’s executive order is relying on a law passed by Congress as the basis for his authority. But I very much doubt that a court ruling that the Alien Enemies Act doesn’t apply in these circumstances is going to stop the administration’s efforts. In its appeal from Judge Boasberg’s order issuing a temporary restraining order against Trump’s executive order from taking effect, the Trump administration argues that “[a]s a function of his inherent Article II authority to protect the nation, the President may determine that TdA represents a significant risk to the United States, that it is intertwined and advancing the interests of a foreign government in a manner antithetical to the interests of the United States, and that its members should be summarily removed from this country as part of that threat.” In other words, according to this administration, Trump doesn’t need no stinkin’ statute to remove anyone he wants from the country.

In fact, by making a claim of “inherent” Article II authority, the Trump administration seems to be implying that Trump’s actions are beyond even the purview of the courts. Indeed, in apparent defiance of Judge Boasberg’s order, both planes containing deported migrants reached El Salvador, where President Nayib Bukele has agreed to imprison them at a cost of $6 million dollars. (The Trump administration claims that the planes were already in the air and out of the court’s jurisdiction, though the order was directed to U.S. agencies and government officials, who are very much in the court’s jurisdiction, not the planes or their pilots.) Responding on X to a post about the judge’s order, Bekele tweeted, “Oopsie…too late.”

Let’s hope his quip extends only to the flights he accepted into his country, and not to the due process rights everyone should be entitled to under our Constitution.

Stay Informed,

Asha