Many in the media would have you believe that President Donald Trump has commandeered an obscure law to wrongly deport violent members of a terrorist gang known as Tren de Aragua (TdA).
In truth, the law is neither obscure nor being wrongfully deployed.
The Alien Enemies Act (AEA) was passed by Congress and signed into law in 1798. It is well-established, has never been repealed, and has been reviewed by courts numerous times. Four different presidents have invoked it, three of them Democrats in the 20th century. Moreover, the act is not limited to wartime authority as some claim. Presidents Woodrow Wilson and Harry Truman used the act well after both world wars had ended.
This brings us to the events of the last several days. On Friday, President Trump invoked the Alien Enemies Act under the “predatory incursion” provision. Some 260 illegal aliens were promptly deported to El Salvador, many of them under the authority of the AEA. They include suspected murderers, rapists, and other violent criminals who engaged in kidnappings, extortions, and human, drug, and weapons trafficking.
A substantial number of those expelled were known members of Tren de Aragua, which is officially designated as a Foreign Terrorist Organization. According to the White House, “They unlawfully infiltrated the U.S. and are conducting irregular warfare and undertaking hostile actions against the United States.” Evidence shows that they engaged in narco-terrorism while operating at the behest of a foreign country, Venezuela’s Nicholas Maduro regime.
Even before Trump announced his proclamation, attorneys for the American Civil Liberties Union (ACLU) sprinted to a federal district judge in Washington DC in what looks like a classic case of “forum shopping” – picking a preferable judge in a favorable venue. Predictably, Judge James Boasberg, an Obama appointee, issued a temporary restraining order (TRO) in an attempt to block Trump’s actions.
There are several troubling aspects of Boasberg’s directive. First, he acted without bothering to hear from the government, depriving the Trump administration of any chance to respond. Second, the five named plaintiffs in the ACLU’s petition were TdA gang members detained in Texas, where a Washington, D.C., judge has no jurisdiction. Third, the exclusive remedy for a litigant who contests the AEA is a habeas corpus petition, not a temporary restraining order. Fourth, the judge magically transformed the entire case into a class action and extended his restraining order to all noncitizens that might be affected by Trump’s invocation of the AEA.
Finally, Boasberg let it be known that he wanted any airplanes carrying TdA terrorists to turn around midair and return to the U.S. Curiously, his return flight demand was not contained in Boasberg’s final written TRO. Likely, he realized that no judge has the power to issue an order redirecting flights beyond U.S. soil and airspace. But his willingness to verbalize such a lawless desire is a window into the thinking of an activist judge whose own political views or personal animus toward Trump may be dictating his judicial decision instead of the law.
On behalf of the president, the Department of Justice is now seeking a stay pending a review by the D.C. Circuit Court of Appeals. Depending on the middle court’s ruling, the case could end up once again in the hands of the Supreme Court.
Judge Boasberg reportedly stated that the Alien Enemies Act does not “provide a basis for the president’s proclamation given that the terms invasion, predatory incursion really relate to hostile acts perpetrated by any nation and commensurate to war.” If true, that comment can only be described as a hasty judgment utterly bereft of any knowledge or relevant information since no fair hearing was held before he issued his TRO. Boasberg should object to himself for assuming facts not in evidence.
Fatigued with violent immigrant crime, the American people are substantially in favor of deportations. They expressed their desire at the ballot box. Does any serious person believe that dangerous foreign gangs like Tren de Aragua who have terrorized innocent victims should be allowed to stay here? President Trump is utilizing every tool that the law affords to evict enemy aliens who pose a constant threat.
More than two centuries ago, Congress well recognized such peril. That is precisely why it passed a broad law granting to the President the sole authority to evict enemy aliens. 150 years later, the Supreme Court upheld that statute when it said, “This Alien Enemy Act has remained the law of the land, virtually unchanged since 1798.”
Lower court judges are duty-bound to follow Supreme Court precedent. On that basis alone, Judge Boasberg’s precipitous ruling is wrong as a matter of law.
