LAW & CRIME NEWS
April 10, 2025
President Donald Trump’s administration apparently believes the Alien Enemies Act of 1798 can be used to address unlawful migration and drug trafficking — but so far, federal courts have pushed back on that notion.
A March 15 executive order issued by President Donald
Trump suggested a Venezuelan gang known as Tren de Aragua was behind “an
invasion of and predatory incursion into” the United States.
The Alien Enemies Act has only been used three times, during the War of 1812, World
War I and World War II, when it was used to justify the mass internment of
people of Japanese heritage while the U.S. was at war with Japan.
The United States is not at war with Venezuela. However,
based on the government’s interpretation of the Alien Enemies Act,
the Trump administration forcibly deported 238 alleged Venezuelan gang members
without due process. Included with those summarily deported was Kilmar Abrego Garcia, a man with a work permit, married to
an American citizen, and raising an American-born child. Abrego Garcia was sent
to El Salvador in spite of a 2019 protection order prohibiting his deportation
to El Salvador.
In late March, Chief U.S. District Judge James Boasberg
temporarily blocked any deportations under the Alien Enemies Act, writing that
the law refers to hostile acts perpetrated by another nation. On appeal, 4th
U.S. Circuit Court of Appeals sided with Boasberg.
In the neighboring jurisdiction of the District of Maryland, U.S. District Judge Paula Xinis found that the government had no lawful authority to detain and deport Abrego Garcia. She ordered his return. The Justice Department in a Supreme Court filing stated that Abrego Garcia was removed to El Salvador through an “administrative error,” but the government had no authority to effectuate his return.
Just this week, the Supreme Court lifted Boasberg’s order that had barred the government
from removing noncitizens who are designated as members of a Tren de Aragua. By
a vote of 5-4, the justices declined to address the challengers’ contention
that they are not covered by the Alien Enemies Act of 1798 on which Trump
relied in issuing the order. Instead, the high court found, the challengers’
lawsuit must be brought in Texas, where they are being held, rather than in
Boasberg’s Washington, D.C., court.
However, Justice Brett Kavanaugh wrote a brief concurring
opinion that “the Court’s disagreement is not over whether the detainees
receive judicial review of their transfers — all nine Members of the Court
agree that judicial review is available. The only question,” he concluded “is
where that judicial review should occur.”
As the Trump administration celebrated its “victory,” judges in Texas and New York said “not so fast.” Judges in both states
temporarily barred the government from deporting Venezuelans jailed in parts of
those two states while lawyers challenge the Trump administration’s use of
Alien Enemies Act of 1798.
The orders were the first to occur following the Supreme
Court’s ruling that the administration can resume deportations under the act.
The broader decision was handed down by U.S. District Judge
Fernando Rodriguez Jr., appointed by Trump and sitting in the Southern District
of Texas. He said that the administration cannot use the Alien Enemies Act to
remove any Venezuelans being held at the El Valle Detention Center, in
Raymondville, Texas, near the southern border, until at least April 23, giving
lawyers for the detainees an opportunity to argue that the Alien Enemies Act is
only applicable to enemy nations in times of war.
The Trump administration received further bad news from the U.S. Supreme Court. In what appeared to be a unanimous decision, the high court affirmed on Thursday Xinis’ order requiring “the government to facilitate Abrego Garcia’s release from custody in El Salvador” and to be prepared to share what steps it has taken to bring Abrego Garcia home. She set a hearing for Friday, and — when DOJ lawyers asked for more time to evaluate the Supreme Court’s ruling — excoriated the government attorneys.
“[T]he Defendants’ act of sending Abrego Garcia to El
Salvador was wholly illegal from the moment it happened, and Defendants have
been on notice of the same,” Xinis wrote Friday in response to the government’s
request. “Indeed, as the Supreme Court credits, ‘the United States acknowledges
that Abrego Garcia was subject to a withholding order forbidding his removal to
El Salvador, and that the removal to El Salvador was therefore illegal.’
Second, the Defendants’ suggestion that they need time to meaningfully review a
four-page Order that reaffirms this basic principle blinks at reality.”
As the hearing went forward on Friday, Xinis lashed out at the Trump administration after DOJ
lawyers said that the government was “not yet prepared to share” information as
to what efforts have been made to “facilitate” Abrego Garcia’s release.
“That means they’ve done nothing,” Xinis said in retort.
The decisions in the deportations cases are coming fast and
furious, and with each ruling, courts are beginning to assert their
constitutional authority to hold in check an overreaching executive branch.
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