The Trump administration’s invocation of the Alien Enemies Act on Friday—in a declaration that was initially kept secret, before being posted Saturday—has been held up in court for now, amid an escalating legal battle over the government’s compliance or lack thereof with a judicial order.
But the importance of the Alien Enemies Act declaration isn’t just because of the court battle, or because the first planeload of deportees was sent to provide forced labor in a prison in El Salvador. After all, if the Trump administration prevails, it will be allowed to resume deportations of Venezuelan men under the act—to El Salvador or any other country that will take them—without giving them any chance of a hearing or even the opportunity to know the evidence against them.
Fundamentally, the use of the Alien Enemies Act sidesteps immigration law, with the protections built into it to ensure that people are not deported to torture or persecution, and with it anything resembling the Constitutional guarantee of due process.
The Alien Enemies Act was enacted in the 18th century—part of the notorious “Alien and Sedition Acts,” which your humble correspondent was taught about in eighth grade as an example of executive overreach during the period when the American republic was still working some bugs out. It was last invoked during World War II, to detain and deport noncitizens from Germany, Italy, and Japan.
Its invocation now isn’t just the reanimation of yet another long-dormant legal authority. It’s unique in three important ways.
First of all, in the last 80 years, the U.S. government has implemented a comprehensive legal regime governing immigration—one that is no longer based on nationality (as it was in the World War II era) but based on individual traits. Part of this is its adoption of asylum laws in compliance with the post-World War II Refugee Convention—rooted in the understanding that people are not the same as their country’s government, and that, in fact, an individual might be so endangered under their government that they need to flee to seek protection elsewhere. The Trump administration’s attitude is that because the Alien Enemies Act precedes these laws, it exists independently of them – that the Alien Enemies Act creates some parallel policy in which none of the rights given to noncitizens in immigration law apply.
Second of all, in previous cases, the Alien Enemies Act has been used only when the United States is officially at war—something that, constitutionally, only Congress can do. The Trump administration, however, has not asked Congress for a war declaration. Instead, in a first-day executive action, Trump declared that the U.S. was under invasion – by whom, he didn’t specify—and is now justifying use of the Alien Enemies Act because the U.S. is under a “declared invasion” (declared, of course, by Trump himself).
Then, finally, there’s the question of to whom the act applies. In this weekend’s declaration, Trump stated the U.S. was under attack not by the state of Venezuela, but by the Tren de Aragua gang. The declaration asserts that Tren de Aragua has so thoroughly infiltrated the Venezuelan government that it constitutes a “hybrid criminal state”—raising some questions about the Trump administration’s negotiations with the Venezuelan government to accept more deportees. As a result, instead of applying straightforwardly to everyone of a given nationality, the Trump administration has invoked the AEA against Venezuelan men over the age of 14 who are determined to be members of Tren de Aragua.
But because there is no process whatsoever prescribed under the Alien Enemies Act for how the government is supposed to make such a determination—much less any right for the supposed gang member to challenge it, or any penalties to the government for getting it wrong—what we have is this: when allowed to use the Alien Enemies Act, the Trump administration could take a Venezuelan man from his home one day and put him on a plane the next. He wouldn’t appear before a judge, or an asylum officer, and if he said he would be persecuted in his home country the U.S. could ignore his pleas. All it would take would be labeling him a member of Tren de Aragua—a label that he might not even know about, and that no one would ever learn the justification for.
This is not a hypothetical. In the days since the flight to El Salvador, several reports have arisen of Venezuelans deported under the Alien Enemies Act, without hearings, who have no criminal records in the U.S. and no apparent ties to the gang.
The Washington Post reported on a quartet of men who had moved to the Dallas area together, playing soccer in their spare time while working in retail and food-production jobs to support their families back in Venezuela. The men were detained by ICE in a raid of their home, and believed they’d be sent back to Venezuela; their children were planning a welcome-back party. Then one of their mothers saw a video posted online by the Bukele government and recognized her son, head shaved and grimacing in apparent pain.
Lawyer Lindsay Toczylowski has posted on social media about a client of hers, a queer tattoo artist fleeing persecution in Venezuela, who was scheduled to have an immigration court hearing on Friday only to disappear. Instead of showing up in court, he was put on a plane to El Salvador.
In conversations with Reuters, family members of other men arrested by ICE in Texas expressed their suspicions that their loved ones had been sent to El Salvador—without knowing for sure. Their suspicions had nothing to do with any criminal or gang activity – it was simply that their loved ones had rose tattoos. (Experts say that tattoos are not used as a marker of gang membership in Tren de Aragua.)
The fact that so many stories have come to light in only a few days—when many families still do not even know for sure that their relatives have been labeled Tren de Aragua members and deported—strongly suggests that these are not exceptions. (Indeed, in a court filing, ICE has acknowledged that a majority of the people it believes to be Tren de Aragua members do not have criminal records in the United States—though it insists it doesn’t identify someone as a gang member by tattoos alone.) And regardless of how many are mistakes, it would not matter—they would have no way of correcting the error, much less returning to the United States.
That’s what the administration says. It is accruing to itself near-absolute and unquestionable power. It is turning the United States into a country where families’ lives can be ruined, with no process and no recourse, simply on the government’s say-so.
FILED UNDER: Detention, Trump administration
