President Donald Trump escalated his mass deportation efforts over the weekend by invoking the Alien Enemies Act of 1798 to order the removal of virtually any Venezuelan national in the United States who he claims is a member of Tren de Aragua, an international criminal group. As of Sunday evening, more than 100 Venezuelan nationals had been flown to a prison in El Salvador to be held under an executive order invoking the controversial law.
Trump’s sudden order drew the executive branch into yet another showdown with the federal judiciary. While the deportation flights were in the air on Saturday, Judge James Boasberg ordered the Trump administration to turn the planes around while legal proceedings continued. The flights instead continued to their destination in El Salvador. The Venezuelans are being held in a local prison there under an agreement between the Trump administration and President Nayib Bukele’s government, which the U.S. reportedly is paying $6 million to accept 300 alleged gang members and imprison them for a year.
These developments raised a series of overlapping legal issues. The first and most important question is whether the White House defied a federal court order outright for the first time. The answer appears to be yes. While the administration has had compliance issues (to be charitable) with some judicial orders over the last two months, this is the first time that it has openly refused to comply with one of them.
In a court filing late on Sunday titled “Notice to the Court,” the Justice Department said it “object[s] to this court’s assertion of jurisdiction, including over the president’s exercise of powers vested in him by Article II.” While the department stated that it would not deport the five plaintiffs in that particular lawsuit, it also claimed that it “will continue to protect the United States using authorities other than the proclamation.” Attorney General Pam Bondi took the unusual step of signing the court filing herself, along with the rest of her senior staff.
It is unclear whether this defiance was premeditated or improvised. The news outlet Axios reported on Sunday that unnamed White House personnel had claimed the original plan was to deport them before a lawsuit could be filed and a federal court could intervene. Once the ACLU caught wind of the plan and asked Boasberg to file a temporary restraining order, however, the administration reportedly decided to ignore it on dubious grounds.
Its legal argument for defiance, other than raw power, is that the judge’s order does not apply once the foreign nationals are in international waters and airspace. “There was a discussion about how far the judge’s ruling can go under the circumstances and over international waters and, on advice of counsel, we proceeded with deporting these thugs,” one unnamed senior White House official reportedly told Axios.
That is a Hollywood scriptwriter’s understanding of jurisdiction and international waters. Boasberg had jurisdiction over the defendants in the ACLU lawsuit—the various Trump administration officials who were on U.S. soil and could accordingly order the flights’ return. It did not matter whether the actual flights were over the Atlantic Ocean, the Pacific Ocean, or the Sea of Tranquility on the moon.
Just as troubling is the Trump administration’s invocation of the Alien Enemies Act of 1798. The archaic founding-era law allows the president to make proclamations that allow entire groups of foreign nationals, on a country-by-country basis, to “be apprehended, restrained, secured, and removed as alien enemies.” The law does not allow the deportation of anyone 13 years old or younger or naturalized U.S. citizens. Beyond that, however, it is exceptionally broad and direct.
In his executive order on Saturday, Trump invoked the law against Venezuelan nationals in general because of the activities of Tren de Aragua, or TdA, a Venezuelan prison gang that acts as an international criminal organization. Trump’s order claimed that TdA had close ties with a drug cartel sponsored by Venezuelan President Nicolás Maduro, and that members of TdA had infiltrated high offices in the Maduro government.
Among various other drug-related crimes, Trump said in his executive order, “TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.” Those offenses, he said, justified invoking the Alien Enemies Act.
All American schoolchildren have heard of the 1798 law at one point or another. It is better known as the “Alien” portion of the Alien and Sedition Acts, a series of laws passed by the John Adams administration to address perceived foreign and domestic threats. The Sedition Act made it a federal offense to criticize the federal government. That law’s enforcement was widely unpopular and in obvious violation of the First Amendment. The Alien Enemies Act and the associated laws were meant to target immigrants who would be more likely to vote for the rival Democratic-Republican Party by making them easier to remove and harder to naturalize; Adams ultimately did not use its deportation powers before leaving office.
Among legal scholars, the general consensus is that the Alien and Sedition Acts were unconstitutional. Justice Joseph Story’s influential Commentaries described the laws as ones whose “constitutionality has been denied” even though they “left no permanent traces in the constitutional jurisprudence of the country” because the Supreme Court did not get an opportunity to consider them. The Virginia and Kentucky legislatures adopted resolutions drafted, respectively, by James Madison and Thomas Jefferson, to denounce the laws as unconstitutional and call for their nullification.
There is a catch to this sweeping authority, however: The Alien Enemies Act can’t be invoked during peacetime. Presidents can only lawfully invoke this power “whenever there is a declared war between the United States and any foreign nation or government” or when “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government,” according to the law’s text.
That may pose a problem for Trump on appeal. America’s diplomatic relationship with the Venezuelan government is hardly a warm one. But the United States of America is not at war with the Bolivarian Republic of Venezuela. Neither the Venezuelan government nor the U.S. Congress has formally declared war on one another. Nor is there an “invasion or predatory incursion” by Venezuelan armed forces currently underway or otherwise imminent. Venezuelan troops are not on American soil or deployed near the U.S. border.
Trump nonetheless argued that TdA is effectively a proxy for the Venezuelan government and that it is “undertaking hostile actions and conducting irregular warfare” against the U.S., “both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” There is some evidence of ties between the two: Chilean authorities implicated TdA members and Maduro’s government in last year’s assassination of Ronald Ojeda, a Venezuelan dissident living in exile in Santiago at the time. Venezuelan authorities also maintain informal relationships with powerful prison gangs like TdA to maintain order in some parts of the country.
At the same time, Trump offered no actual evidence that TdA is waging any sort of military or clandestine campaign against the U.S. itself at Maduro’s behest. Invoking the Alien Enemies Act to address such a problem would also be an ill-fitting solution. Roughly 334,000 Venezuelans lived in the U.S., as of last September, via Temporary Protected Status. As its name suggests, TPS allows the U.S. government to grant temporary legal status to people from war-torn countries who can’t safely return home. Thousands more Venezuelans reside in the U.S. right now on lawful visas. The idea that all or even most of them are part of a foreign invasion or a transnational criminal organization is nonsensical.
The Trump administration’s natural rejoinder here might be that Trump’s executive order did not go nearly that far. The order itself says that “all 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 administration is not throwing out all Venezuelans, they might argue, just those who are TdA members.
It would not surprise me if many, if not most, of the Venezuelan nationals sent to El Salvador were genuine TdA members. The question is whether they have been given an opportunity to defend themselves from that allegation. The Trump administration has not had to prove, before either an immigration judge or a regular federal judge, that any of the people it has deported are actual members of TdA. For that reason, the order’s sweeping nature raises serious due-process concerns under the Fifth Amendment.
I suspect the Trump administration does not really care. It promised “mass deportations” to its supporters, not “deportations only done after due-process hearings and careful forethought on constitutionally solid grounds.” The White House is interested in the law only to the extent that it provides a fig leaf for what it wants to do anyway. Everything else can be shuffled into broad invocations of national emergency or executive power.
Even the backlash to these deportation flights was anticipated: Axios quoted unnamed White House officials who seemed to welcome the optics of Democratic lawmakers, federal judges, and media outlets criticizing them for deporting what they described as hardened gang members. The goal, as always, is not to govern competently or govern efficiently, but to govern in whatever way looks best on Fox News each night. Compliance with a federal court order is meaningless next to that higher principle.
