Why the Trump Administration's Use of the Alien Enemies Act is So Dangerous

As I have discussed in several posts, the Trump Administration has asserted the Alien Enemies Act of 1798 as the basis for its efforts to send hundreds of Venezuelans to El Salvador without due process. So far the focus of the courts has been on the Constitutional requirement of due process in these cases, and the decisions have been very clear: The Supreme Court ruled that before anyone is removed under the Alien Enemies Act, they must be afforded meaningful due process, and it has rejected the Administration’s claim that a mere 24 hours’ advance notice meets this requirement. Given that the motivation of the Trump Administration in invoking the Alien Enemies Act was to avoid giving due process, this may well settle the issue as a practical matter, but I think it is important to note that even if robust due process is granted, the Alien Enemies Act remains a very dangerous tool unless its use is sharply limited.

Here is the text of the Act:

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 Act has been used only three times in our history—all in the context of Congressionally declared wars: the War of 1812, World War I, and World War II. Most infamously, it was used as the authority to hold people of Japanese descent in detention camps. What was most troubling was the fact that the Act was used to justify the interment of even U.S. citizens despite the fact that the text seemingly excludes naturalized citizens, and native born citizens of the U.S. are not natives, citizens, denizens, or subjects of the hostile nation or government.

I think several features of the Act deserve closer attention.

First, under the Act, there must either be a “declared war” (which only Congress can declare) or “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” Under the text of the Act, it is not sufficient that that there be an invasion or intrusion by some group of people, such as gang members or terrorist organizations. The Act only applies if a foreign nation or government is behind this invasion or incursion. This is why the Trump Administration asserts—both in the Executive Order and in its court filings—that the Madura Government is aligned with Tren de Aragua.

Second, once invoked, the Act does not distinguish immigrants based on their legal status. The only requirement is that the aliens be “natives, citizens, denizens, or subjects of the hostile nation or government.” This means that those lawfully in the U.S.—including green card holders—can be detained and removed. (Notably, the Trump Executive Order exempted green card holders despite the language of the Act. The Act, however, did not require this carve-out). This allowed the Trump Administration to target Venezuelans with lawful status who otherwise were not subject to deportation.

Third, while the Trump Executive Order only authorized the removal of alleged Tren de Aragua members, the language of the Act would allow them to detain and remove any citizen of Venezuela since the the Madura Government is the “hostile native or government” whose “invasion” allows use of the Act.

It is very good news that the Supreme Court has agreed that aliens have the right to meaningful due process before being removed. This means that aliens will have the right to contest in court whether the requirements of the Executive Order are satisfied: “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.”

What concerns me is that if the courts rule that the legal requirements of the Act are satisfied, the Executive Order could be expanded to apply to all Venezuelans—whether or not members of Tren de Aragua—which would mean the focus of due process is would be rather narrow: whether the alien is a Venezuelan citizen.

So while the due process decision by the Supreme Court is important, the more fundamental issue of whether the requirements of the Alien Enemies Act have been satisfied is still crucial. The key issue is whether there has been “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.”

The Trump Administration position on this issue is simple. It asserts that the President alone—and not the courts—has the authority to determine whether there has been such an intrusion or invasion. In court filings they have asserted that the “President’s authority and discretion under the AEA is not a proper subject for judicial scrutiny,” and ““[w]hether the AEA’s preconditions are satisfied is a political question committed to the President’s discretion[.]”

This is because, they assert, the issue of whether there has been such an invasion or incursion is a “political question” that cannot be reviewed by the courts. Taken to its extreme, under this view, the President could declare that every country in the world has perpetrated an invasion and thereby allowing an order to removal of all non-U.S. citizens without any court being able to review whether this is the case.

Fortunately, no court has accepted this extreme position. As a Trump-appointed Judge in JAV v. Trump held “Based on the Supreme Court’s decisions regarding the AEA, as well as the principles enumerated in Baker, the Court concludes that while it may not adjudicate the veracity of the factual statements in the Proclamation, or the propriety of the steps taken by the President as to Venezuelan aliens and TdA members, the Court retains the authority to construe the AEA’s terms and determine whether the announced basis for the Proclamation properly invokes the statute.”

All of the courts to review the issue have rejected the political question doctrine and—with the sole exception of Judge Stephanie Haines of the Western District of Pennsylvania—have held that there has been no invasion or incursion that would allow exercise of the Alien Enemies Act powers. As one court concluded,

The historical records that the parties present, supplemented by the additional records that the Court reviewed, demonstrate that at the time of the AEA’s enactment, the plain, ordinary meaning of “invasion” was an entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory. In a similar vein, the common usage of “predatory incursion” and, to a lesser degree, “incursion,” referenced a military force or an organized, armed force entering a territory to destroy property, plunder, and harm individuals, with a subsequent retreat from that territory. Although other uses exist for these terms, those rare uses do not represent the ordinary meaning of those terms.

. . .

As for the activities of the Venezuelan-directed TdA in the United States, and as described in the Proclamation, the Court concludes that they do not fall within the plain, ordinary meaning of “invasion” or “predatory incursion” for purposes of the AEA.

So far the only decisions on this issue have been by District Courts, and only one has issued a permanent injunction. Before the Supreme Court ultimately decides this issue, there must be final decisions by the various trial courts and decisions by the Courts of Appeal. At some point in the not so distant future, however, the Supreme Court must face these issues:

• Is the issue of whether there has been an invasion or incursion a political question not subject to court review?

• What deference should be given to the Presidential determination that there has been such an invasion or intrusion?

• Has there been such and invasion or intrusion by a foreign government or nation within the meaning of the Act?

There may be a more fundamental issue as well: is the application of Alien Enemies Act in these circumstances constitutional? This Act, after all, is only a statute, and like all statutes is subject to constitutional requirements. The courts must therefore review whether the Act is unconstitutional on its face, and if not, whether the particular application of the Act violates the constitution.

The Equal Protection Clause of the Fourteenth Amendment (which applies to the federal government through the Fifth Amendment) bars discrimination on the basis of national origin unless there is a compelling state interest and the action is narrowly tailored to meet that interest. In the context of outright war perhaps there is such a compelling state interest. I doubt, however, whether the application of national origin discrimination here can be justified as narrowly tailored to meet a compelling state interest.