what’s at stake
President Donald Trump’s use of an obscure 1798 law to justify the removal of Venezuelan migrants from the US, many of them alleged gang members, is his latest test of the bounds of executive power.
The law, known as the Alien Enemies Act, has only been used a handful of times in US history and allows for the deportation of noncitizens during wartime without having them go before a judge. Trump’s move immediately provoked legal action, and his administration sparked a court battle last week by ignoring a judge’s order to turn around planes carrying Venezuelans to El Salvador — which touched off a frenzied reconstruction of the timeline around the flights.
At the core of the dispute, which is likely to land before the Supreme Court, is whether the law applies even when Congress hasn’t declared the US at war.
who’s making the case
Katherine Yon Ebright, a counsel at the Brennan Center for Justice, argues that the Alien Enemies Act does not apply in this case because it is “a wartime authority, not a peacetime immigration statute,” and predicts that the Supreme Court will rule against Trump:
“The president’s decision to call migration and narcotics trafficking ‘irregular warfare’ in his Alien Enemies Act proclamation does not transform this non-military activity into an act of war. Nor does the secretary of state’s designation of Tren de Aragua as a foreign terrorist organization (FTO) transform that criminal gang’s activity into an act of war. There are nearly a hundred designated FTOs across the world in countries as far flung as Peru, the Philippines, and Ireland. It would be absurd to suggest that we are at war with each and every one of those groups.
“There are serious concerns about the continued viability of the Alien Enemies Act based on its past use in World War II — when the law served as the authority behind interning 31,000 noncitizens of Japanese, German, and Italian descent without due process and based principally on their ancestry. Using this law again, particularly in peacetime to bypass the due process protections of congressionally enacted immigration law, would recall and deepen this shameful history.
“In our system of checks and balances, the courts are designed to rein in abuses by the president. A majority of the justices can and should reject a pretextual invocation of a law meant for wartime. And I believe that the Supreme Court will do so.”
Josh Blackman, a constitutional law professor at South Texas College of Law Houston, argues that the law could apply to new scenarios even though there is no formal declaration of war, but sees reason to bet on the high court ruling against Trump:
“The Alien Enemies Act was passed more than two centuries ago in a very different situation. But the fact that the law was enacted for a different purpose does not mean it cannot be applied to new circumstances. I’m not sure it applies to the migration system broadly, but it has been applied to particular migrants whom the president has deemed to be alien enemies.
“The law applies during an invasion or a war. Trump declared an invasion.
“In Trump v. Hawaii (2018), the [Supreme] Court upheld President Trump’s final version of the travel ban. The Court has also given a broad reading of executive power. But I think the current Court, in particular Chief Justice Roberts and Justice Barrett, are cautious about giving any more authority to President Trump. I would not bank on Trump winning here.”