You've probably seen the images: men in white, chained, with their heads bowed and shaved, surrounded by police with clubs in their hands and masks covering their faces, being taken to a Salvadoran prison.
The controversy involving the deported Venezuelans is just as intense. The people taken to El Salvador are Venezuelan nationals who are accused of belonging to the infamous Tren de Aragua gang. But there was no hearing where the U.S. government presented evidence and the men could argue their innocence.
As promised during his campaign, President Trump invoked the 1798 Alien Enemies Act to deport the men. Under the 1798 Alien Enemies Act, a president has broad authority to deport foreign nationals without due process during wartime. As we've previously written, the Alien Enemies Act has been used three times in U.S. history, most recently during the forced internment of people with Japanese ancestry during WWII.
Importantly, this case is also controversial because there was a court order temporarily restraining deportations based on this law which was possibly not respected.
Facts and Timeline
On Saturday, the Trump administration issued an executive order titled "Invocation of the Alien Enemies Act Regarding the Tren de Aragua Invasion of the United States." It announced that all Venezuelan members of Tren de Aragua over the age of 14 who did not have a green card or had been naturalized would be detained and deported. That same day, alleged Tren de Aragua gang members were flown to El Salvador and Honduras.
District of Columbia Judge James E. Boasberg issued a temporary halt to the deportations and, since two of the planes were already in international airspace, verbally ordered them to return to the U.S. The planes never returned.
The White House press secretary alleged that it wasn't that they refused to comply, but that the order had no legal basis. The Trump administration claimed the planes had already departed. She added that the U.S. paid El Salvador $6 million to detain 261 men who were deported there. The Salvadoran president, for his part, responded to the order suspending deportations with the comment, "Oopsie, too late."
Why the Talk of a 'Constitutional Crisis'?
In response to this, Judge Boasberg ordered the federal government on Monday to provide details regarding the deportations, given that this contradicted his order temporarily suspending them under the Alien Enemies Act. The Department of Justice initially mostly refused to answer questions, claiming national security concerns.
On Tuesday, at a subsequent hearing, the Justice Department insisted that the judge lacked the authority to order the two planes that departed first to turn around when they were already in international airspace, and when his order had been oral, not written. Regarding the third plane that departed after the judge issued the written order, all individuals on board had final Title 8 removal orders and had therefore obeyed the non-deportation order under the Alien Enemies Act.
The question, therefore, is if the Trump administration intentionally refused to comply with a court order, which is why some are now calling it a "constitutional crisis."
What the Alien Enemies Act Says
Underlying the case is The Alien Enemies Act of 1798. It allows the U.S. president to imprison or deport immigrants from hostile nations in times of war. The Trump administration's argument is that the executive can unilaterally define the current immigration crises as an "invasion," and therefore deport "invaders" under this law. Critics argue that no one in U.S. government has declared war. Furthermore, the parameters for determining whether a person is sufficiently suspicious to be deported expeditiously are unclear, raising concerns about the lack of due process. Immigrants deported under the Alien Enemies Act do not have access to a judge to review their case. Many immigration attorneys defending deportees argue that the evidence that their clients belonged to Tren de Aragua is as vague as simply having tattoos.
We do know "many" of them did not have criminal records in the U.S. On Tuesday, Immigration and Customs Enforcement (ICE) official Robert Cerna told reporters that a "lack of specific information about each individual actually highlights the risk they pose,” arguing that immediate deportation without due process was justified.
What's Next?
The Justice Department argued that disclosing classified information poses a risk to national security and international relations, refusing to provide certain answers Judge Boasberg had requested. In light of this, Boasberg made another request for an explanation, but under seal and confidentiality, for Thursday, March 20. Trump, for his part, called for the removal of the judge who ordered the deportation halt (although without explicitly naming him), calling him a "radical left-wing lunatic." This prompted Chief Justice of the Supreme Court John Roberts to issue a reminder that "[f]or more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.”
For now, there are two issues to be resolved with this case.
- The first is whether the Trump administration will comply with the temporary restraining order prohibiting them from invoking the Alien Enemies Act to deport noncitizens. So far, the messages from various members of the Trump administration have been mixed.
- The second is whether the Trump administration can use the Alien Enemies Act in the way they want. This is a legal question that, typically, would be resolved through the courts, with the Trump administration able to appeal a verdict they did not agree with.
Related Resources
- First Circuit Denies Stay on Trump’s Birthright Citizenship Order (FindLaw's Federal Courts)
- Can an Executive Order Shut Down the Department of Education? (FindLaw's Law and Daily Life)
- New Executive Order Makes English the Nation's Official Language. What Does That Mean? (FindLaw's Law and Daily Life)
