In mid-March, President Donald Trump invoked an almost-never-used federal law, claiming that it gives him the power to deport many immigrants at will with minimal or no legal process to determine if these deportations are lawful. The text of that statute, the Alien Enemies Act of 1798, does not give presidents the power Trump claims.
For the moment, at least, a lower court order blocks Trump’s Alien Enemies Act proclamation; that order is still in effect, although there is ongoing litigation about whether the Trump administration defied it by sending dozens of Venezuelan immigrants to a prison in El Salvador after the lower court ordered the planes carrying these immigrants to be turned around.
Now Trump wants the Supreme Court to halt the lower court order and effectively allow him to resume deportations without any meaningful review, and without having to prove the immigrants targeted by his proclamation have actually done anything wrong. The case, which is known as Trump v. J.G.G., is before the Court on its “shadow docket,” a mix of emergency motions and other matters which the justices often decide after only cursory review of the case. A decision on the case could come any time in the next few weeks.
In J.G.G., Trump’s lawyers make three arguments that, when combined, would give him virtually unchecked authority to remove any noncitizen from the United States.
First, Trump claims the unprecedented authority to invoke the Alien Enemies Act during peacetime, and against a nonstate actor — in this case, Tren de Aragua, a criminal gang that originated in Venezuela. That law, which does give the president sweeping authority to remove foreign nationals when properly invoked, only applies during a “declared war between the United States and any foreign nation or government,” or during a military “invasion or predatory incursion” of the United States.
Congress — the only branch of government that can declare war — has not declared war on Venezuela, and the alleged presence of civilian criminals in the United States is not a military operation. Also, the Alien Enemies Act only applies to military actions by a “foreign nation or government.” Tren de Aragua is not its own nation, nor does it control the government of Venezuela.
Second, Trump’s lawyers argue that the immigrants challenging his proclamation may only bring their case in Texas federal court, under a legal procedure known as a “habeas” proceeding, which typically can only be used by a single individual to challenge their own detention.
That matters for two reasons. Federal cases brought in Texas appeal to the US Court of Appeals for the Fifth Circuit, a far-right court that routinely interprets the law in creative ways to benefit right-wing causes and the Republican Party, something likely to put anyone trying to stop a deportation at a disadvantage. Additionally, if challenges can only be brought on an individual basis, it may no longer be possible to obtain a broad court order blocking his entire proclamation.
Third, even if an immigrant targeted by Trump could convince the Fifth Circuit to shield them from deportation, they are unlikely to ever get that chance. As Judge Patricia Millett, one of four lower court judges who’s already heard the J.G.G. case, explains, the administration’s position is that once Trump’s proclamation goes into effect “it can immediately resume removal flights without affording Plaintiffs notice of the grounds for their removal or any opportunity to call a lawyer, let alone to file a writ of habeas corpus or obtain any review of their legal challenges to removal.”
If the Court were to accept this third argument, Trump would be able to deport people so quickly that, by the time a lawyer or judge learns they were deported, it will be too late to do anything about it.
Trump’s peacetime invocation of the Alien Enemies Act is illegal
The Alien Enemies Act has only been invoked three times in American history: during the War of 1812 and during both world wars. In all three instances, Congress had formally declared war.
It’s likely that presidents have been reluctant to use this power in the past, even during other wars, because the authority provided by the Alien Enemies Act is extraordinarily draconian. When properly invoked, the law permits the federal government to arrest, detain, and remove “all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized.” So during a declared war with Germany, the president may order nearly all German citizens removed from the United States, regardless of whether those German nationals took any aggressive or criminal action whatsoever.
Trump now claims that he can use this law during peacetime to target alleged members of Tren de Aragua.
Even setting aside the fact that the Alien Enemies Act only applies to foreign nations or governments — and Tren de Aragua is neither — there appears to be no legal authority whatsoever supporting Trump’s claim that this law can be used against a foreign gang engaged in ordinary criminal activity.
In its brief to the justices, the Trump administration claims that Tren de Aragua’s alleged presence in the United States constitutes a “predatory incursion” under the Alien Enemies Act. But the only source Trump’s lawyers cite to support this claim is a 1945 trial court decision that quotes President John Tyler (who became president in 1841) using the term “predatory incursion” to refer to military raids during a war between Mexico and the then-Republic of Texas.
So this 1945 opinion offers no support for the proportion that a “predatory incursion” can be committed by civilians during peacetime. And, in any event, it’s notable that the only legal source Trump’s lawyers could come up with is an 80-year-old decision by a single, low-ranking judge.
The J.G.G. plaintiffs’ brief, by contrast, quotes from numerous founding era dictionaries and other historical documents that use this term exclusively to refer to a military raid, including a letter from George Washington to Thomas Jefferson, which used “predatory incursion” to refer to a British raid on American military supplies in Virginia.
Trump’s proclamation, in other words, relies on a wholly novel interpretation of the Alien Enemies Act, one that posits it can be used in peacetime, despite what the text of the law says. And his lawyers did not find any support whatsoever for this new interpretation in over 200 years of American legal history.
Trump’s attempts to cut off judicial review are also meritless
Perhaps recognizing that its interpretation of the Alien Enemies Act is unprecedented, the Trump administration spends the bulk of its J.G.G. brief raising procedural objections to the lower court’s order blocking Trump’s proclamation, particularly its claim that this proclamation can only be challenged in habeas proceedings in Texas.
Habeas proceedings typically must be brought in the jurisdiction where the prisoner is held. The Trump administration incarcerated the J.G.G. plaintiffs in Texas, so it claims that their suits must be brought in Texas federal court.
However, habeas proceedings are a way — often the only way — for someone in federal prison to challenge their detention. And the plaintiffs in J.G.G. do not challenge the government’s ability to detain them while a valid removal case against them proceeds. They simply challenge the Trump administration’s attempt to remove them without due process under the Alien Enemies Act. And the Supreme Court has held that habeas is not the right remedy when a plaintiff does not challenge their detention.
As the Court said in Skinner v. Switzer (2011), there is no case “in which the Court has recognized habeas as the sole remedy, or even an available one, where the relief sought would ‘neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody.’”
That decision means Trump’s attempt to shunt any challenge to his proclamation into individual legal proceedings, where the individuals bringing those proceedings can be deported before they can even speak to their lawyers, should have no merit. If one of the J.G.G. plaintiffs also want to challenge their detention, that case may need to be brought in Texas, but the Trump administration’s attempt to shut down a broader challenge to the Alien Enemies Act proclamation cannot be squared with Supreme Court precedent.
Additionally, a different federal immigration law cuts against Trump’s claim that immigrants challenging the Alien Enemies Act proclamation must be brought in individual habeas suits. The Immigration and Nationality Act generally provides that it lays out “the sole and exclusive procedure for determining whether an alien may be … removed from the United States.”
This law, moreover, gives immigrants a variety of procedural rights, such as the right to claim asylum. It does permit expedited proceedings against some immigrants, including those that commit serious felonies, but even those noncitizens are entitled to notice and a hearing before they are removed from the country. And this law undercuts the administration’s argument that it can summarily deport people.
Of course, any legal analysis of any Supreme Court case involving Trump must come with a caveat. This is the same Court that ruled over the summer that Trump can use the powers of the presidency to commit crimes, so there is no guarantee that these justices will follow existing law.
Nevertheless, the law — as it is understood now — is quite clear that Trump cannot use the Alien Enemies Act to cut off due process for immigrants during peacetime.
