5 Things to Know About Trump’s Alien Enemies Act Proclamation

Opinion for The Latino Newsletter

Editor’s Note: The last few days have seen a flurry of breaking news coverage about the Aliens Enemies Act of 1798. The Latino Newsletter asked the National Immigration Law Center (NILC) for permission to republish Raha Wala’s March 17 piece. The link to the original piece is here. Raha lists his five takeaways about recent about the 18th-century statute.

1. It’s illegal.

   The Trump administration over the weekend unlawfully deported over 100 Venezuelans with zero due process under the Alien Enemies Act of 1798 (AEA). Here’s the thing though: the AEA is a wartime authority that only allows the executive branch to detain and deport immigrants that are citizens of foreign nations or governments the United States is at war with, and the United States is not currently at war with Venezuela or any other country. This is an unlawful attempt to misuse and abuse wartime authorities to justify what is basically a mass kidnapping campaign. The administration seems to think that if they say there’s an “invasion” at the Southern border the courts will give them carte blanche to use war authorities however they want. It is imperative for immigrants and for the fate of our democracy that the courts prove them wrong.

2. The AEA’s shameful history shows why it should be immediately repealed.

   Remember the awful internment of Japanese Americans during World War II? You can thank wartime authorities like the AEA for that; it was used not only to justify the internment of people of Japanese descent, but also for detentions and deportations of Japanese, Austro-Hungarian, German, and Italian immigrants without due process. The law has only been used three times in U.S. history —the War of 1812, World War I, and World War II— and frankly that’s three times too many given its history of abuse, which both Democratic and Republican leaders have apologized for.  

3. These initial AEA abuses could spur a constitutional crisis.

   In a dramatic turn of events, the judge reviewing President Trump’s AEA proclamation learned during an emergency hearing on Saturday that deportation flights under the AEA were already in the air and immediately ordered the government to turn them around. The Trump administration appears to have defied the judge’s order and sent hundreds of Venezuelans to El Salvador for further detention. Openly defying a valid court order would be the functional equivalent of President Trump positioning himself as a king who does not need to answer to a co-equal branch of government under our Constitution. The administration is not yet openly saying it intentionally defied the court order as it claims the planes were already mid-flight and beyond the jurisdiction of the court when the order came down. I was listening in on the hearing as this drama was unfolding and let’s just say I’m more than a little skeptical of the government’s position. Either way, we should be getting an update in court filings soon. Watch this space.

4. The AEA proclamation is a human rights disaster in the making.

   It’s shocking to think that people are being detained and summarily deported under the Alien Enemies Act with no due process on secret allegations that they are a gang “member.” It’s even more awful considering the initial group of Venezuelan men detained under the AEA were sent to a mega-prison in El Salvador that crams up to 70 detainees into a single cell and is notorious for torture, denials of medical treatment, and even deaths in custody. The administration also apparently intends to send AEA detainees to be held at the detention facilities at Guantanamo Bay, Cuba, which has its own record of torture and mistreatment. More broadly, forcibly transferring people to places where they are likely to be persecuted, tortured, or subjected to cruel treatment is a terrible violation of human rights. 

    

5. There’s a deeper constitutional and rule of law crisis brewing.

   If you’ve been following the Trump administration’s early executive actions, this invocation of wartime authority is only one piece of a larger puzzle in which the administration intends to use a rhetorical so-called “invasion” at the Southern border to unleash a slew of wartime and emergency powers that are otherwise reserved for literal wars, rebellions, and insurrections. What’s on the table? Bombing campaigns against cartels in Mexico, sending migrants to Guantanamo as “wartime” detainees, and deployment of the military on U.S. soil to round people up, place them in internment camps, and deport them. Like the “forever wars” this war on migrants is modeled on, we should also expect costs to the tune of hundreds of billions or even trillions of dollars and untold death and suffering for civilians, including American citizens. These are extreme, emergency, wartime actions that can only be authorized by Congress and would violate the Constitution and international law if used outside of war to manage migration. 

Let’s be clear: President Trump’s proclamation invoking the Alien Enemies Act is an affront to democracy, human rights, and the rule of law. We intend to take swift action to mobilize in the streets, in Congress, and in the courts to quash this dangerous wartime authority once and for all.  

About the Author

Raha Wala is Vice President, Strategy & Partnerships, at the National Immigration Law Center. He is an advocacy strategist, lobbyist, and lawyer with over 15 years of experience designing, leading, and implementing human rights advocacy campaigns.

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What We’re Reading

Deportees in El Salvador: From The Conversation, “[Nayib] Bukele’s crackdown on gangs has come at a huge cost to human rights—and nowhere is this seen more than in El Salvador’s prison system.”

Statement From Venezuelan American Caucus: On Tuesday, the Venezuelan American Caucus issued a statement about the Aliens Enemies Act.

The Latino Newsletter welcomes opinion pieces in English and/or Spanish from community voices. Submission guidelines are here. The views expressed by outside opinion contributors do not necessarily reflect the editorial views of this outlet.