SUMMARY  

• What’s happening: The Trump administration deported hundreds of immigrants by employing an antiquated and centuries-old law last invoked to justify the internment during World War II, despite a court order to halt the deportations. 

• Why it matters: The judiciary is a co-equal branch of government that the executive branch does not have the constitutional authority to defy. The Trump administration’s defiance of a federal court’s order and attacking federal judges destabilizes the checks-and-balances at the core of our democracy.  

• Our position: Donald Trump’s continued effort to expand unchecked executive power must be stopped and the critical role of our courts must be protected.  

Over the weekend, Trump announced the invocation of the Alien Enemies Act, and ordered the immediate detention and deportation of Venezuelan immigrants with alleged ties to a gang known as Tren de Aragua. The president may invoke the Act in times of “declared war” or when a foreign government threatens or undertakes an “invasion” or “predatory incursion” against U.S. territory. 

Hundreds of individuals were deported to El Salvador over the weekend despite a federal judge issuing a temporary restraining order on the same day blocking Trump’s invocation of the Alien Enemies Act and subsequent deportation actions. The last time the Alien Enemies Act was invoked by a president was during World War II to provide the basis for Japanese internment.  

The Trump administration’s decision to deport these individuals despite a court order appears to be a direct defiance of the judiciary, with the White House press secretary saying on Sunday that courts “have no jurisdiction” over the president’s actions on foreign affairs. This is not a view that the Supreme Court has ever embraced. 

THE ALIEN ENEMIES ACT  

The Alien Enemies Act (50 U.S.C. § 23) was enacted in 1798 as part of a set of four laws known as the Alien and Sedition Acts to exert greater control over noncitizens living in the United States. The Alien Enemies Act is the only remaining of the four laws still in effect today, the remainder of which had expired or been repealed in the early 1800s. The Act allows, during wartime, for the president to proclaim certain noncitizens to be “alien enemies” and permit their detention and deportation.  

The use of the Act has a deeply racist and offensive history. The last time the Act was invoked during World War II was to serve as legal authority to detain and incarcerate Japanese, Germans, and Italians charged as “enemy aliens.” The unchecked power given to the president under this Act, even during wartime in the 1940s, was acknowledged by the U.S. government during the fight for Japanese reparations in the 1980s to be rooted in “racial prejudice” and “wartime hysteria” instead of valid national security concerns.  

The broad language of the Alien Enemies Act remains the law, although no president has invoked it for legal authority since World War II. Recent litigation challenging the application of the Alien Enemies Act emphasize that the Act can “be triggered in only two situations… when a formal declared war exists” or when “a foreign nation or government perpetrates, attempts, or threatens an invasion or predatory incursion against” the United States.  

The constitutionality of the Act under today’s understanding of due process rights and equal protection leaves Trump’s reliance of the Act to deport noncitizens in question, especially where the United States is not in a declared war with the foreign nation of the individuals the Trump administration has deported. The Act has never been invoked outside of actual wartime, despite the administration’s attempts to publicly claim this “war” on transnational gangs as a valid basis for this action. 

DEFIANCE OF A COURT ORDER 

A lawsuit to challenge the use of the Alien Enemies Act was filed on Saturday, March 15, with federal District Court Judge James Boasberg hearing the plaintiffs’ motion for a temporary restraining order on the same day. Judge Boasberg granted the restraining order from the bench, temporarily blocking the Trump administration from removing any individuals under the Alien Enemies Act. Despite Boasberg’s order for flights to not depart and for any flights mid-air to be turned around, the administration failed to comply.   

In a March 17th hearing to clarify whether the government has defied the court’s orders, the Justice Department lawyer representing the administration refused to answer questioning presented by Boasberg about the deportation flights to El Salvador, asserting “national security concerns.” And in a March 18th response to Boasberg’s request for additional information, the Justice Department refused to tell the federal judge when the deportation flights took off. A review of flight data suggests that one of the flights did not even take off from the U.S. until after the court order was issued. 

Các White House claims they are not defying the court order, but that it has “no lawful basis” and that “federal courts generally have no jurisdiction over the president’s conduct of foreign affairs.”  

Trump administration representatives, including “border czar” Tom Homan, appear to be openly stating that they are defying the court’s order, saying on Fox News that “we’re not stopping… I don’t care what the judges think.”  

TRUMP’S THREAT TO A FEDERAL JUDGE 

On Tuesday, Trump publicly called for the impeachment of Judge Boasberg for exercising his judicial authority in halting this suspicious use of the Alien Enemies Act, which drew a prompt response from Supreme Court Chief Justice John Roberts, emphasizing that “impeachment is not an appropriate response to disagreement concerning a judicial decision.” The Justice Department has already urged the appeals court to remove Judge Boasberg from the case entirely, levying accusations against the federal district court judge.  

This battle between the Trump administration and the federal judiciary is deepening the possibility of a constitutional crisis with the executive branch refusing to comply with the judicial branch’s authority. The administration’s actions not only amount to a challenge to a court order, but to the federal judiciary’s independence and authority. The Trump administration has already appealed the district court’s order to the appeals court, with a likely goal of reaching the Supreme Court.