Donald Trump’s administration is deploying methods out of dystopian novel by using the flimsy pretext of an archaic wartime power during peacetime to suddenly load hundreds of people into planes, sans evidence, and fly them to a friendly third state to be held in a dangerous mega-prison while defying the courts.
Welcome to the suddenly invoked 1798 Alien Enemies Act, designed to allow the government to act against invading foreign militaries and agents during times of war, on the ludicrous premise that the Tren de Aragua gang is an invasion force of the Venezuelan government.
The law was most infamously used during the terribly wrong internment of Japanese-American citizens during WWII. In this case, the order would facilitate the summary deportation of Venezuelans 14-years or older who were not permanent residents or citizens and were accused of being TdA members, an accusation for which the government does not feel it needs to furnish any proof.
D.C. Federal Judge James Boasberg had already stopped Trump from removing five plaintiffs under this authority, and as the ACLU rushed to get a broader order, the government was rushing to load up planes with Venezuelans bound for Honduras and El Salvador, in the latter case to be held at the notorious CECOT mega-prison that Salvadoran President Nayib Bukele offered up for U.S. deportees.
In a filing before the judge Saturday night, the Department of Justice advanced an argument that stretches far beyond the bounds of even the most expansive interpretation of executive authority likely ever presented by a presidential administration: the president has, the lawyers alleged, “inherent Article II authority” to determine that certain people should “be summarily removed from this country.” They did not bother to draw a distinction between types of noncitizens, or even citizens and noncitizens in this statement.
This is a jaw-dropping assertion of authoritarian power. It was bad enough that the administration is advancing the absurd notion that the presence of one gang that few people have even heard of, and which seems to have a relatively small footprint in the U.S., constitutes a literal military action, and that this gave them the power to swiftly deport people under a law passed 15 years after the end of the Revolutionary War.
Here, Trump’s government is going a step further and floating the idea that the president simply has the power to remove anyone he deems a threat to the United States, practically for any reason, at his personal discretion and without any adherence to the statutory scheme that Congress has laid out.
Every part of this is beyond illegal. It seems Judge Boasberg, who learned during the emergency hearing that planes were already in the air, came to a similar conclusion and ordered the government to stop using the AEA to deport people while the matter moves forward, and for planes not yet landed to turn around or bring would-be deportees back.
Yet yesterday morning, Bukele posted pictures on X of deportees leaving the plane, and said 238 accused TdA members had been taken to CECOT. If so, this could be a flagrant violation of a judicial order. Boasberg should consider contempt. Either we have a constitutional system, or we don’t.