The administration should abandon its Alien Enemy Act theory and shift to the solid ground of federal immigration laws.
I t is time for President Trump to abandon the ill-conceived attempt to deport alleged Venezuelan gangbangers under the Alien Enemy Act (AEA).
The reasons for this are basic. First, the summary deportation the administration hoped to accomplish — i.e., arresting people and stealthily shipping them to a third country’s prison notorious (according to the State Department) for human rights violations without judicial review — is illegal.
Second, the administration invoked the AEA for the wrong reason: Its driving concern is not an invasion or predatory incursion by an alleged arm of the Venezuelan government — the Tren de Aragua (TdA) criminal enterprise. It is the lack of detention space allocated by Congress for immigration-law offenders, which the administration foolishly believed it could overcome by telling the courts to mind their own business about its stashing of those offenders in a third country.
Third, the Trump vision of the United States government — namely, that it exists to implement Donald Trump’s directives rather than to protect liberty by preventing too much power from accumulating in a single set of hands — is running headlong into the Constitution’s framework.
The ruling issued this week by a three-judge panel of D.C. Circuit federal appeals court is a thoroughgoing rebuke of the administration’s theories and the Justice Department’s arguments. Technically, it’s a divided panel (2 to 1), in the sense that Judge Justin R. Walker, a Trump appointee, dissented on the narrow question of whether the temporary restraining order imposed by the lower court should be lifted. But even Judge Walker was constrained to note the Trump Justice Department’s own grudging concession that the Venezuelans have a right to challenge their deportation under the AEA — exactly the right the administration did not give them before shuffling them off to El Salvador, against the order of the lower court (Chief Judge James Boasberg of the federal district court in Washington, D.C.).
That is to say, Walker’s beef is his assessment that the detainees sued (a) in the wrong court (in the District of Columbia, rather than in the Southern District Texas, where they were detained), and (b) under the wrong theory of relief (the Administrative Procedure Act (APA), rather than habeas corpus). Walker’s opinion is not persuasive. As pointed out by his panel colleagues — Judges Karen LeCraft Henderson and Patricia A. Millett, appointees, respectively, of Presidents Bush-41 and Obama — there is significant authority for the proposition that detainees who are seeking to challenge deportation rather than detention may do so under the APA.
Moreover, Walker’s position, like the Trump DOJ’s, is that due process — which minimally requires notice and an opportunity to be heard before a fair tribunal — is satisfied even if the government doesn’t give notice to the detainees before deporting them. That’s absurd. Walker rationalizes that the fact that the ACLU smelled a rat and filed an emergency appeal on behalf of five detainees before the planes took off shows that the hundreds of detainees similarly situated had all the notice they needed. Tell that to the 261 who are now sitting in a Salvadoran prison. The administration quite intentionally did not provide notice because it was trying to get the detainees out of the country, and out of the jurisdiction of the federal courts, so they would not be able to file the legal challenges that even the Justice Department now admits they were entitled to file.
Walker’s colleagues have the better of the argument. We could get into why, but it’s really beside the point now. Here’s reality: The administration did this — Secretary of State Rubio, in one of his first official acts, negotiated a deal to pay El Salvador for space in a prison that is not up to American Eighth Amendment and civil rights standards — because Congress has not provided enough detention space.
It’s the same reason that the administration, in fits and starts, is also trying to detain illegal aliens at Guantanamo Bay. Candidate Trump unrealistically promised that he would rapidly deal with the deluge of illegal immigration caused by the Biden border collapse. In our system, however, it is a practical impossibility to deport people unless there is space to detain them while their deportation proceedings ensue. (Statutory law unambiguously calls for the detention of illegal aliens; and when the government releases them despite that law, they tend not to show up for legal proceedings, which are years delayed due to the backlog.) We probably have 20 million illegal aliens in the country (including criminal aliens — those who have committed crimes that make them deportable even if they entered legally). The government, however, has said it is maxed out at just 47,600 detention spaces. In our constitutional system, that is not a problem the president can solve unilaterally. In fact, the problem, primarily, is Congress’s to solve.
The Trump administration has done a commendable job reversing the incentives for “migrants” to try to come to America. That is a boon for our security and domestic tranquility. It also has a variety of humanitarian benefits for the migrants themselves. The president, however, may not just kick out of the country people whose presence here displeases him.
We are a nation of laws, not men. Like most national security conservatives, I believe the distinction between citizens and aliens (even lawful permanent resident aliens who are on track to become citizens) is significant, and that the government should have broad powers to exclude and deport aliens — even if they engage in activity over which the Constitution would protect citizens from being prosecuted. But that doesn’t mean that aliens have no rights.
Our immigration laws, if actually applied as written, are strong (even if I would tighten them up to clarify that anti-American ideologies — not just criminal or terrorist actions — are a proper basis for exclusion and removal). But Congress has provided processes — due process — for deporting and removing aliens. If the system were not hopelessly overtaxed, especially after President Biden’s derelictions of duty on immigration enforcement and border security, those processes could work well. But regardless of how functional they are, the president has no constitutional authority to override or ignore those processes. They are the law.
The administration wagered that, if the president invoked the AEA, even in the absence of any congressional declaration of war or authorization of combat operations, the DOJ might get away with arguing that the judiciary had no business second-guessing the commander in chief’s judgments in the realm of war, national security, and foreign relations. But the president’s concern is not war; there is no war with Venezuela. The president’s concern is illegal immigration.
Thus, the AEA invocation was a bad bet since (a) courts have been entertaining such challenges since the AEA was first invoked in the War of 1812 (an actual declared war), and (b) the Supreme Court in the 1948 Ludecke v. Watkins decision explicitly stated that a person may challenge his designation as an alien enemy under a presidential AEA proclamation.
Justice Felix Frankfurter, writing for the 5–4 majority, further opined that that courts are well equipped to rule on whether the AEA has been properly invoked by the president. In Ludecke, the issue was whether there was a “declared war” (i.e., whether the war Congress had declared in 1941 was still in effect a year after Germany’s 1945 defeat — the Court held that it was). As Judge Henderson explained in her opinion ruling against the Trump administration, courts are well equipped to decide, derivatively, whether a foreign power has engaged in an “invasion” or “predatory incursion” — the conditions that trigger the AEA just as “declared war” does. Henderson elucidated that, if the administration presses ahead on the AEA theory, it is highly likely to lose on those questions because, as originally understood, those terms referred to the armed forces of foreign powers, not illegal immigration and criminal gangs.
The president should thus reverse course. The administration should abandon its AEA theory and shift to the solid ground of the federal immigration laws.
As I’ve previously explained, under the immigration laws, the government may summarily deport members of terrorist organizations. The administration has designated TdA as foreign terrorist organization. Of course, an alien subjected to such deportation proceedings would have a due process right to challenge the government’s allegation that he is a member of TdA. But such an alien, it is now clear, would have a similar right to challenge his alleged TdA membership under the AEA. Since the administration cannot avoid due process either way, and since the immigration-law basis for deportation is strong while the AEA basis is dubious, it’s a no-brainer: Switch to immigration law.
The longer the AEA gambit goes on, the worse it will get. The Justice Department is embarrassing itself in this case. There are controversies in which willful progressive judges are going out of their way to derail Trump initiatives. This is not one of them.
This was not a district judge run amok. The administration lost in one of the nation’s most important appellate tribunals, before a panel that was neither unsympathetic to its concerns nor unmindful of the deference owed to the president (though it recognized that deference is not a rubber stamp). The panel’s exasperation with the Justice Department’s arguments (including its failure to respond to important contentions and take rudimentary steps, such as seeking a stay from Judge Boasberg) is manifest in the 90 pages of opinions. And it is just stunning to find the DOJ conceding that it owes the aliens a right to be heard, yet still stubbornly contending that it has no duty to provide notice so that right to be heard can be effectuated. The court did not abide that stance — and God help us if it is the law the next time Democrats run the Justice Department.
And please: Can we cut the political drivel that to acknowledge what should be the unremarkable fact that aliens — even criminal aliens — have rights is to “side with the terrorists” and callously disregard the victims of TdA. That’s BS, and the veteran law enforcement officials blathering it know it’s BS. I spent nearly 20 years prosecuting alien criminals and terrorists. No matter how heinous the crimes they commit, you still have to bring them to court when you arrest them; I didn’t get to tell the agents, “Handcuff them and put them on a plane.” Presidents sworn to execute the laws faithfully know this. We still have to prove the case. In immigration proceedings, less proof and less process are required, but there is still process, and proof is still necessary. That is not controversial; it is elementary.
President Trump is a maximalist regarding his executive authority. That inevitably means constant collisions with the judiciary. Having an attorney general who sees her job as appearing on prime-time cable television shows to attack judges (between her expert observations about CNN’s ratings, which everyone is no doubt dying to hear) is not a strategy for winning those cases. And regardless of the fate of those cases, the illegal-immigration crisis cannot be effectively addressed with Congress AWOL.