Reading the 1798 Alien Enemies Act the only way it can be read, Texas Federal Judge Fernando Rodriguez has issued a permanent injunction prohibiting the Trump administration from using the old law to detain and remove to El Salvador Venezuelans accused (on flimsy evidence) of being part of the Tren de Aragua gang.
“The historical record renders clear that the president’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s term,” wrote Rodriguez, a Trump appointee.
The ancient law requires that there be a foreign war underway and there is no foreign war going on, other than the one in the mind of some in the White House.
In all of the back-and-forth over the dearth of due process and the defiance of judicial orders we can’t forget that the underlying premise was absurd on its face. We are, obviously, not in anything that resembles war with a relatively small gang that has little presence in the United States, which the Trump administration has on different occasions both thanked Venezuela’s Maduro government for helping combat and also claimed is effectively an extension of that government. There is no invasion, there are no combatants, no enemies.
There was another 1798 law from the suite of bills that came to be known as the Alien and Sedition Acts — which are in sum rightly considered a low point in U.S. history — that would have more easily slotted into Trump’s deportation vision: the so-called Alien Friends Act, which allowed the executive to essentially deport any noncitizen who was considered dangerous, without the requirement that the United States be at war with that person’s country of origin.
Countries we are not at war with are thus “friends” and those we are fighting are “enemies.” The Alien Friends Act expired in 1801, an anachronism from another, less civilized period of U.S. history, yet Alien Enemies remained and has been used in some of the country’s most shameful moments, including Japanese internment during World War II.
Even so, the law as written only mentions the removal of supposed enemy agents and combatants. There is nothing in that law, or indeed apparently anywhere else in the U.S. code or Constitution, that allows the U.S. to pay for the imprisonment of people at a foreign gulag, which it claims to be both be directing the use of but have no power over as it defies orders to return more than one illegally deported person.
Judges across the ideological spectrum have pretty uniformly sided against this effort to detain, remove and imprison people without any due process for the simple reason that it is an existential threat to the rule of law.
Throughout this ordeal, there have been some rumblings in the public that any folks so caught up must have done something to find themselves in this situation. But that is the entire point of due process — to establish whether or not someone has committed some type of offense, and then determine the appropriate and proportionate consequence. Without that, we have tyranny. We’re glad our judiciary is standing in the way.
