April 25, 2025
Written By: Ayah A., Legal Intern Criminal Defense Dept.
First, they came for the immigrants: National security and Trump’s invocation of the Alien Enemies Act
“Strange things are happening in this land, and only when the truth is widely known, can we put a stop to them.”
~Luisa Moreno[2]
Throughout U.S. history, there has been a pattern of an exception for human rights and civil rights—the “national security threat” exception. Trump’s recent invocation of The Alien Enemies Act of 1798 is an example of this. The Alien Enemies Act states: +
“whenever there is a declared war between the United States and any foreign nation or government, or any 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…” [3]
This law allows the president to detain or deport citizens of an “enemy nation” without a hearing or due process of law.[4] Trump’s use of this law has raised the following legal questions: who defines a “declared war” or a “predatory incursion”? Trump is “tapping the infrequently used Alien Enemies Act in a way never seen before, relying on gang membership, not armed conflict, to use the executive’s war powers to deport people.”[5]
Trump’s use of the Alien Enemies Act “in a way never seen before”
Until now, this “centuries old wartime law”[6] has only been invoked three times: during the War of 1812, World War I, and World War II, where it was used to justify the Japanese internment camps.[7] The Constitution gives Congress the power to declare war, but the President has authority to independently invoke the law based on a threatened or ongoing invasion, which is what Trump did with the Executive Order on March 15, 2025 that targets the Venezuelan Tren De Aragua gang—although there is no actual armed conflict or ongoing invasion between the Tren De Aragua and the U.S.[8]
The Political Question Doctrine and Executive Power
Last month, the Trump administration asked the Supreme Court to authorize the use of the Alien Enemies Act to expedite the removal of noncitizens identified as members of Tren de Aragua.[9] The administration invoked the political question doctrine to defend its use of this Act, as stated in the brief to the Supreme Court: the dispute “presents fundamental questions about who decides how to conduct sensitive national-security operations in this country—the President, through Article II, or the judiciary…The Constitution supplied a clear answer: The President.”[10]
Failure of the Federal Government to Comply with District Court Orders
Chief U.S. District Judge James Boasberg barred the federal government from deporting any of the alleged gang members or anyone else under the Alien Enemies Act, and ordered that any flights that had already taken off must return to the U.S.,[11] but he was met with noncompliance from the federal government and an impeachment threat from Trump.[12] At least three flights with 238 disappeared Venezuelans, all labeled as alleged “terrorists” and “gang members” by Trump without an opportunity to contest the accusation, were removed to El Salvador to be held in the Terrorism Confinement Center mega-prison (CECOT)—with documents indicating that many of them do not have criminal records at all.[13] The government is paying El Salvador six million USD to imprison all the deportees for a year.[14]
In early April, in one of the most closely watched emergency appeals before the Supreme Court, the Court decided to allow Trump to continue using the Alien Enemies Act “to speed [up] removals while litigation over the act’s use plays out in lower courts,” effectively throwing away Judge Boasberg’s orders. [15] However, more recently this past weekend, the Supreme Court temporarily halted the further deportation of Venezuelans held in Texas “until further order from this court” following an emergency appeal from the ACLU.[16]
One story that highlights the injustice at play here is Kilmar Abrego Garcia’s. He is a father of three from Maryland who has no criminal history at all,[17] and was “accidentally” kidnapped by ICE and disappeared to CECOT on March 15th due to “oversight errors” earlier this month.[18] The Supreme Court held that Abrego Garcia should be afforded due process of law in future proceedings,[19] and U.S. District Judge Paula Xinis ordered that the administration must facilitate his return.[20] But when Trump and Nayib Bukele, the president of El Salvador, met a couple weeks ago, Bukele said he has no power to return Abrego Garcia to the U.S., labeling him a “terrorist,” and claiming he was in the MS-13 gang—with absolutely no evidence or history of criminal records to prove affiliation.[21] Furthermore, the Trump administration “claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear,” wrote Judge Wilkerson of the Fourth Circuit.[22]
Senator Chris Van Hollen traveled to El Salvador in an attempt to meet Abrego Garcia, but he was denied entry into CECOT, although other cars were allowed to go on, and other Republican representatives have recently been photographed in front of the prison cells in CECOT.[23] He was later able to meet with Abrego Garcia after repeated attempts, who has since been transferred out of CECOT into a facility in Santa Ana.[24] Van Hollen was also able to meet with El Salvador’s Vice President, who stated that Abrego Garcia continues to be held in CECOT because “the Trump administration is paying the government of El Salvador to keep him [there].”[25]
A few days later on April 19, the Supreme Court granted an injunction for a group of detainees who were awaiting their removal under the Alien Enemies Act.[26] The Court directed the government not to remove any of the detainees until further order from the Court. District Judge Boasberg has stated that there is probable cause to hold the Trump administration in criminal contempt of court, and warned he could pursue prosecution of officials for violating his orders last month to stop the planes headed for El Salvador.[27]
Implications
The President’s blatant violation of court orders sets “a very dangerous precedent. We have three separate and co-equal branches of government to avoid one of those branches from abusing its power. And if President Trump thinks he can do everything without judicial review, then we are in a constitutional crisis.”[28] Furthermore, the invocation of the Act is an “outright assault on fundamental rights”—“as lawless as it is harmful.”[29] The ACLU’s senior counsel in DC stated that “this is yet another dangerous overreach by the administration, designed to support an unchecked mass deportation program, all while bypassing the necessary judicial review.”[30]
The “National Security” Exception
Trump’s insistence that Venezuelan migrants pose a national security threat[31] echoes the post-9/11 era, during which major human rights violations occurred, such as detention without trial, torture, and the disappearance of alleged terrorists into CIA black sites and Guantanamo Bay.[32] The national security concern served as a “pretext to dramatically expand mass surveillance” of the Muslim American community and racial profiling.[33] Over the past few decades, this legal framework which grants broad discretion and authority to the executive branch to designate people, organizations, and groups as “national security threats” or “terrorist organizations,” or to accuse people of material support of terrorism, has allowed the executive branch to consolidate and strengthen its power in this regard.[34]
Now, “the Trump administration is layering all these laws and history and invoking the same vocabulary . . . in order to extend enforcement power and the government’s ability to enact violence”[35] and violate immigrants’ human rights, due process, and basic decency. The Trump administration even invokes the same infamous institutions widely known for human rights violations since the post-9/11 era—Guantanamo Bay prison—to hold “high priority criminal aliens” in detention.[36] Some migrants are already currently being held there.[37]
Prediction of Supreme Court Ruling
The challenge against the Alien Enemies Act is now pending at the Supreme Court.[38] Looking back to Trump’s previous presidency provides some guidance as to how the Supreme Court might rule.
In 2017, Trump’s Executive Order limiting foreign nationals from seven Muslim-majority countries to enter the U.S. (widely known as the “Muslim Ban”) was highly contested.[39] In Trump v. Hawaii, the Supreme Court held that Trump had not exceeded the authority granted to the executive under the Immigration and Nationality Act, as the statute “exudes deference to the President in every clause.”[40] Although the challengers brought evidence of Trump and his advisers “casting doubt on the official objective” of the Executive Order,[41] alluding to the unconstitutional purpose of excluding Muslims, the Court stated that its review is limited to whether the Executive gave a facially legitimate and bona fide reason for its action.[42] The Court also asserted how immigration cases that overlap with national security “raises concerns for the separation of powers,” and that the Court’s “inquiry into matters of entry and national security is highly constrained.”[43] The Court applied rational basis review to conclude that Trump’s proclamation did not show animus towards Muslims, but rather had legitimate grounding in national security concerns.[44]
The deciding vote in Trump v. Hawaii was Justice Kennedy, who wrote a concurring opinion. He noted that government actions that are not subject to judicial intervention must keep the Constitution and the rights it proclaims and protects at the forefront: “Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.”[45]
The implementation of the Muslim Ban was highly unfavored among the lower courts and among the American people, but when it reached the Supreme Court, it was held to be constitutional under Presidential discretion and authority.[46] As Justice Sotomayor and Ginsburg stated in their dissent, “the majority [was] ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the proclamation inflicts upon countless families and individuals,” referring to the fact that a reasonable observer who was aware of Trump’s past comments on Muslims would conclude that the proclamation was motivated by anti-Muslim animus.[47]
Like with the Muslim Ban, will the Supreme Court hold similarly for the invocation of the Alien Enemies Act? Will the Court, “charged with ensuring the American people the promise of equal justice under the law and, thereby, also function[ing] as guardian and interpreter of the Constitution,”[48] allow the Executive to continue to ignore orders from lower courts and “accidentally” disappear people on the pretext of a national security threat, disrespecting the Constitution’s revered principle of Due Process? So far, it looks like it will.[49]
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FOOTNOTES
[1] In reference to the poem “First They Came” by Pastor Martin Niemöller; see https://hmd.org.uk/resource/first-they-came-by-pastor-martin-niemoller/
[2] https://parade.com/living/luisa-moreno-quotes
[4] https://www.brennancenter.org/our-work/research-reports/alien-enemies-act-explained
[5] https://thehill.com/regulation/court-battles/5201906-trump-venezuelan-deportations/
[6] https://thehill.com/regulation/court-battles/5211406-judge-nazi-alien-enemies-act/
[7] https://www.brennancenter.org/our-work/research-reports/alien-enemies-act-explained
[9] https://www.scotusblog.com/2025/03/trump-asks-justices-to-intervene-on-alien-enemies-act-removals/
[10] Id.
[11] Id.
[12] https://thehill.com/regulation/court-battles/5211406-judge-nazi-alien-enemies-act/; see also https://www.cnn.com/2025/03/18/politics/john-roberts-donald-trump-impeachment/index.html (Chief Justice John Roberts pushed back against Trump’s calls to impeach Judge Boasberg, stating: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. . . The normal appellate review process exists for that purpose.”
[14] https://thehill.com/regulation/court-battles/5201906-trump-venezuelan-deportations/
[17] https://storage.courtlistener.com/recap/gov.uscourts.mdd.578815/gov.uscourts.mdd.578815.31.0.pdf at pg 6.
[18] https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf . At pg 3
[19] https://www.supremecourt.gov/opinions/24pdf/24a949_lkhn.pdf . At pg 3
[22] https://www.documentcloud.org/documents/25900495-2025-04-17-court-order-dckt/ (see pg 3)
[24] https://www.cbsnews.com/news/chris-van-hollen-interview-kilmar-abrego-garcia-visit/
[25] https://www.instagram.com/reel/DIhfwHvIu1g/?igsh=bG9zcWl5ZGJha2w4
[26] https://www.supremecourt.gov/orders/courtorders/041925zr_c18e.pdf ; see also plaintiff’s brief https://www.supremecourt.gov/DocketPDF/24/24A1007/356063/20250418172902261_2025.04.18%20AARP%20Application.pdf
[30] Id.
[33] Id.
[34] https://open.spotify.com/episode/567xKWz23CI3JQNUZH63vB?si=vx1WKi9BQLqBYbWF-Gm9mw (podcast @ 25:05)
[35] Id. podcast at 26:00.
[37] https://www.nytimes.com/2025/03/20/us/politics/more-migrants-guantanamo-bay.html
[38] https://www.cnn.com/2025/04/07/politics/supreme-court-el-salvador-abrego-garcia
[39] Trump v. Hawaii, 585 U.S. 667, 678.
[40] Id. at 684.
[41] Id. at 699.
[42] Id. at 703.
[43] Id. at 704.
[44] Id. at 706.
[45] Id. at 712.
[47] Trump v. Hawaii, 585 U.S. at 728-29.
