President Trump Has Invoked the "Alien Enemies Act of 1798" To Remedy Harms Caused By The Biden Administration's Open Border Policy

The Act provides a President with extraordinary powers to deport aliens from foreign countries due to an "invasion" or "predatory incursion" without going through normal immigration processes.

This article is a response to yesterday's hot takes on the invocation of the Alien Enemies Ac of 1798 (AEA), and the subsequent TRO, and an order that two illegal aliens from Venezuelans, who were in the process of being moved to prisons in to El Salvador and Honduras, be returned to the US.

Keep in mind that through regular deportation procedures -- as highlighted by Sec. of State Rubio today -- over 220 members of Tren de Arangua (TDA), the massive and violent Venezuelan criminal organization, have already been sent to El Salvador, and will be held there until Venezuela agrees to take them back. My guess is that in most/all of those cases, the deportees agreed to removal, i.e., an Order of Removal was entered by an Immigration Judge and the illegal alien didn't object.

Yesterday was different, and I remain of the view that this is a test case the Trump Admin has purposely triggered in order to RE-establish POTUS authority to use the AEA to address the consequences of the Biden Admin "Open Border" policy. That policy allowed millions of unvetted migrants to enter the country illegally. The ability of the Administration to deport a substantial number of those illegal aliens is limited by the physical facilities necessary to arrest, detain, and hold them while deportation proceedings take place. Having the ability to execute mass deportations of the worst criminal offenders without going through the processes set forth in other federal statutes would increase significantly the pace by which large numbers of such individuals could be removed without burdening the facilities we do have.

Early Saturday morning 5 individuals were the named plaintiffs in a lawsuit by the ACLU based on claims they were about to be removed from the ICE custody and sent to a foreign country. The complaint also sought the provisional designation of a “class” — other individuals not named but who are now, or will in the future face the same process.

What makes me think this is a test case is that the complaint was filed before President Trump issued an Executive Order stating that he would be using the AEA to remove these five individuals. The exercise of authority under the AEA begins with a Presidential “Proclamation” that certain factual circumstances have arisen, and extraordinary Presidential authority granted by Congress is being invoked to respond to those circumstances.

At the time the complaint was filed, no such proclamation had been issued by President Trump, but the Complaint was specific to an extent that would be highly unlikely if the Plaintiffs’ attorneys had not been given a preview of what it was likely to say. And, in fact, a Proclamation tracking pretty closely with the allegations of the Complaint was made public in the afternoon on Saturday, prior to a 5:00 p.m. hearing scheduled by the District Court in D.C. earlier in the morning.

When the hearing was scheduled, the District Judge issued a TRO to preserve the status quo as it existed at that time — that the Plaintiffs remain in ICE custody and not be transported outside the country. At that time — everyone agreed — the Plaintiffs were still at an ICE facility in Texas.

At the 5:00 pm hearing the District Judge, Presiding Judge Boasberg, made clear on the record that his TRO entered that morning was based on the Complaint’s allegations that the Plaintiffs had not gone through the normal deportation procedures of the Immigration & Nationality Act (INA), and not based on a Proclamation invoking the AEA. At the time he issued the TRO keeping the Plaintiffs in the United States no such proclamation had been issued.

The Government had filed a Notice of Appeal regarding his TRO prior to the 5:00 pm hearing. The Judge stated at the outset that the Notice deprived him of jurisdiction to reconsider or allow the parties to argue further the grounds upon which he had entered the TRO. Whether the was correct to have issued that TRO was now before the Appeals Court.

So the balance of the hearing involved a discussion of various aspects of the request for a provisional class certification and other collateral issues that were connected to that.

The Government first noted a challenge to venue for the complaint being in the District of Columbia. There is case law that IF certain claims for relief “sound in habeas” — meaning they challenge the legality of detention — then they must be brought under the rules that govern habeas litigation. One of those rules is that the complaint must be filed in the federal district where the Plaintiffs are being detained — in this case a district in Texas. In fact, the Complaint included one Count seeking relief pursuant to habeas, but the Plaintiffs claimed the relief sought did not include release from custody.

While not a clear winner, the Government seemed to have the better of this argument. To solve the problem — at the Court’s suggestion — the Plaintiffs dismissed their habeas Count which, for now, solved their venue problem.

The balance of the hearing involved other questions regarding certification of a putative class — meaning temporary and based on the limited facts now before the court which could change. There will be opportunities in the near future for the Government to challenge that validity of the class on a series of grounds. But for the purposes of yesterday’s hearing, the Court did grant the request for putative class status in order to define a “class-wide” TRO since there was now a proclamation invoking the AEA — something that had not yet happened earlier in the morning when he entered a TRO based on a failure to comply with the procedural requirements of the deportation statutes.

Whether or not to issue a TRO turned on two issues — the likelihood that the Plaintiffs’ would prevail on the merits when the trial was held, and whether the Plaintiffs would suffer irreparable harm if the AEA was applied to them while the case was pending — i.e., they were removed to El Salvador or Honduras.

As for the first issue, this is where the unanswered legal questions are presented — and at the time of the hearing there was no legal briefing filed by either side with regard to these issues. The Judge asked both sides several questions based on limited research that had been done, but nothing had been put in writing and there was a significant amount of disagreement as to the answers.

Here is the text of the Alien Enemies Act of 1798, 50 U.S.C. Sec. 21:

Restraint, regulation, and removal

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, 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, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

The District Judge recognized that the first key issue is whether the “public proclamation of the event” — the statement of factual circumstances — is a “justiciable issue.”

What that means is whether the President’s Proclamation that certain events have happened and certain circumstances exist as a result, is subject to judicial review for its truth and/or accuracy? Declaration of war is easy — it would be an empirical fact. But whether there is an “invasion or predatory incursion” tends to be in the “eye of the beholder.”

Everyone agrees there is no “declared war” between the United States and Venezuela. But the Proclamation refers to the relationship of TDA and the Maduro Government in Venezuela as a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States….” On that basis, members of TDA are declared to fall within the Proclamation’s language declaring them as “alien enemies” and subjecting them to removal in accord with its terms.

If there was a declared war with Venezuela, and an alien made subject to removal under the AEA claimed he was Columbian and not Venezuelan, would he have a right to resist his removal on that basis? How would he raise the issue?

By its terms, the Proclamation only extends to members of TDA who are the age of 14 or older — consistent with the AEA. The Plaintiffs allege in their Complaint that the Department of Homeland Security has identified them as members of TDA. They deny they are members of TDA. Are they allowed to resist their removal on that basis?

Even if the “hybrid criminal state” designation is accepted, would an alien in the process of being removed have a right to prove he was only 13 years old and not 14? How would that happen if a court could not halt the removal process after it was underway since the process does not involve any court hearings — including immigration courts.

But the key question that neither side had a definitive answer for during the hearing was whether the Proclamation’s determination that there existed a “hybrid criminal state” in Venezuela, and that state was engaged in an “invasion or predatory incursion” against the United States, was a factual determination subject to judicial review, or was it a non-justiciable issue left to the political branches?

In 1948 the Supreme Court decided the last significant case on the use of the AEA — Ludecke v. Watkins. In a 5-4 decision, the Court decided in that case that the issues raised were non-justiciable, and the determinations made by the President regarding the removal of Germans in the United States was not subject to judicial review.

The most significant factual issue in Ludecke was that the Plaintiff was ordered removed under the AEA in January 1946, more than 7 months after the surrender by Germany and the cessation of hostilities. His case wasn’t decided by the Supreme Court until June 1948, more than three years after VE Day.

But the Supreme Court determined that the question of whether a state of “war” still existed between the United States and Germany, and when that war ended, was a non-justiciable question that Congress had given complete discretion to the President to decide. Whatever was in the Proclamation was not subject to review by courts.

The language in the Ludecke opinion is quite favorable with regard to an expansive view of Presidential power under the AEA. Here are some examples:

"The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons," Marshall, C.J., in Brown v. United States, "appears to me to be as unlimited as the legislature could make it." Washington, J., in Lockington v. Smith…. The very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. This view was expressed by Mr. Justice Iredell shortly after the Act was passed, and every judge before whom the question has since come has held that the statute barred judicial review. We would so read the Act if it came before us without the impressive gloss of history.”

“The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.

“The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights. The fact that hearings are utilized by the Executive to secure an informed basis for the exercise of summary power does not argue the right of courts to retry such hearings, nor bespeak denial of due process to withhold such power from the courts.

Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined. In relation to the distribution of constitutional powers among the three branches of the Government, the optimistic Eighteenth Century language of Mr. Justice Iredell, speaking of this very Act, is still pertinent:

"All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people."

That last passage, quoting Justice Iredell, on the Court from 1790 to 1799, seems particularly apt today. It seems transparently clear that many of the district judges issuing TROs and Injunctions are inclined to simply oppose the policy judgments being made by the new Trump Administration on the basis that they break with history in many areas.

No President has ever invoked the AEA with regard to “non-state” actors like TDA - or Al Queda, ISIS, or Hamas, etc. But there can be little doubt that the Biden “Open Border” policies have resulted in tens or hundreds of thousands of members from these groups illegally entering the United States.

That President Trump is the first to invoke the AEA under new circumstances involving non-state actors does not mean his invocation runs contrary to the discretion given to him by Congress under the statute, nor does it alter the fact that courts — as ratified by the Supreme Court in 1948 — have recognized this discretion since the time of the Founders.

Finally, regarding the order by Judge Boasberg that two of the five plaintiffs who were already on aircraft heading for El Salvador and Honduras be flown back to the United States.

First, most of the discussion about the status of the two individuals, when they left, and what the options were with regard to their return, took place during a closed portion of the hearing where the public access line was shut off. As noted above, early in the morning on Saturday, the Judge issued a TRO stating that the five named plaintiffs in the complaint were to remain in ICE custody — they were not out walking the streets — and not be removed from the country while he considered whether an injunction was appropriate. The Government requested that portion of the hearing take place in a closed session since sensitive security issues were involved in explaining the details of what had happened earlier in the day to the Court.

When the public session resumed, it had been decided during the closed session that the two individuals would be returned to the United States. The facts that could be gleaned from the remaining discussion seemed to suggest that they had been flown out of the United States after Judge Boasberg’s morning TRO stating that they should not be removed from the country. His order did not involve the AEA as the Presidential Proclamation had not been issued yet. So he did not rule that the President didn’t have the power under the AEA to do so, because that question has not been briefed and was not before him when he issued the TRO.

MY GUESS, based on what was said during the public session, is that the Government agreed to bring them back, and I think they did so because they are confident that they will ultimately win this legal fight. The Government may have objected “for the record” — very common in order to preserve the issue for appeal — but out of respect for the Court the view might be that it makes no difference if the five Plaintiffs sit in ICE detention for a few weeks while the issues related to the AEA sort themselves out.

As with many of the court battles now being fought, I think the Trump Administration has the law on its side and will be able to overcome the resistance of the district court judges seeking to slow down the pace of the change that is coming.

In fact, I think this is all part of the Trump Administration’s plan — pick fights you can win, and further strengthen the lawful authorities of the Executive under the Constitution.