Ever since his first presidential campaign, president Trump has pledged immigration reform. In the past few months, America has seen the results of those pledges. ICE raids have been broadcasted on TV and shared over social media sites, while other high-profile cases like that of Mahmoud Khalil and Dr. Rasha Alawieh sparked protests across the country. One case in particular stole the national spotlight, not because of who was involved or where they were from, but because of the law from 1798 that is being used to justify the decision.
WHAT HAPPENED?
On March 15th, the president invoked the Alien Enemies Act of 1798 to deport five Venezuelan citizens, alleged members of the gang Tren de Aragua (TdA), from the United States. This led to the ACLU (American Civil Liberties Union) and Democracy Forward filing a lawsuit against the order, claiming that the Alien Enemies Act was unlawfully invoked. Hours after the presidential proclamation was issued from the White House, US District Judge James Boasberg temporarily blocked the deportations and later ordered the planes to be turned around. According to CNN, “this and the other flights landed after the judge – both verbally and in writing – ordered the government to turn around any planes.” This has caused conflict, as what was concluded in court was ignored in practice.
WHY BOTHER?
This contradiction between the judicial and executive branches has caused debate regarding the authority of the Judge, the intended usage of the act when it was written, and how it supposedly upholds the current situation. As abrupt as this news may seem, this event was foreshadowed by Trump’s signing of Executive Order 14157 on January 20th. The order signaled to the other departments to prepare for a future invocation of the Alien Enemies Act, a claim that rang true on Saturday. Just like that signing foreshadowed Saturday’s events, whatever conclusion comes out of this debate could also serve as precedent for future deportation cases. Therefore, it is important to understand the basis of claims on both sides, and how they can apply to various situations.
WHAT IS THE ALIEN ENEMIES ACT?
According to The Brennan Center for Justice, an independent, nonpartisan law and policy organization, “The Alien Enemies Act of 1798 is a wartime authority that allows the president to detain or deport the natives and citizens of an enemy nation.” It has been used only three times: during World War I, World War II, and the War of 1812. The law is most widely known for its role in the internment of Japanese and Japanese-Americans during World War II, a role described by the Brennan Center as “ a shameful part of U.S. history for which Congress, presidents, and the courts have apologized.”
CAN IT BE APPLIED TO TREN DE ARAGUA?
The key words in the law’s description are “wartime” and “enemy nation.” Notably, the US is not at war with Venezuela, nor is the gang itself a separate government to deport citizens to. So how can this law be applied? Trump has referred to the TdA as a “hybrid criminal state that is perpetrating an invasion of and predatory incursion […] a substantial danger to the United States.” Additionally, the government brief on the appeal of the case claims, “TdA also operates as a de facto government in the areas in which it is operating.”
A group cannot gain sovereignty just because the president claims they are independent. However, an argument can be made by pointing to the case of Zivotofsky v. Kerry, which decides on “…support, although not the sole authority, for the President’s power to recognize other nations…” (constitutioncenter.org). There is debate as to how far this power stretches, but according to Just Security, a non-partisan law and policy journal, the case is “…focused more on how to resolve a disagreement between Congress and the executive branch than on the President’s power to recognize, say, a private company or a remote, uninhabited island as a foreign sovereign.”
Currently, the application of this law is still under debate. Whatever outcome results from this conflict will no doubt change how president Trump will be able to apply the Alien Enemies Act, and will set precedent for future debates of the same nature. What remains true is that in order to understand how these upcoming changes will affect America, it is necessary to gain an understanding of what has occurred so far.
