Perspective 163. Alien Enemies: Can Trump Deport Them Legally?

In deporting suspected members of the Venezuelan gang Tren de Arugua, the president bases his legal authority on the 1798 Alien Enemies Act. Those detained or deported, being “undocumented,” are indeed aliens. By Trump’s definition, they are also enemies by virtue of criminality or other accusations. Is he therefore within his rights to ship them elsewhere?

No. Apart from the lack of due process (an annoying stricture of U.S. law), the application of this 18th century statute is comical as justification for what the current administration is doing.

In perspective, the 1798 law signed by John Adams dealt with the “natives, citizens, denizens, or subjects” of a “hostile nation or government” that had engaged the United States in a “declared war,” “invasion,” or “predatory incursion.” Since the United States is not engaged in a declared war with Venezuela (or anyone else) Trump’s acolytes have seized on “invasion or predatory incursion” as a pretext.

But let’s begin with the fact that Tren de Arugua is NOT a “nation or government.” The acolytes crow that this gang was sent by the Venezuelan government, but they have produced no credible evidence, and experts shake their heads. It is also contradicted by a recently declassified US intelligence memo (Trump will do doubt fire the authors).

And we are NOT at war with Venezuela. But even if we were and Tren de Arugua members were sent by Venezuela, it is absurd to characterize their presence as an “invasion or predatory incursion.” While gang members may be criminals, and deportable as such, the gang as a collective is NOT a government with a foreign policy of any kind that includes a scheme for invading the United States.

Extending our perspective, the Alien Enemies Act has been invoked only three times, and always during a declared war: against British citizens during the War of 1812, and against German and other citizens of enemy states in the two World Wars. Needless to say, the Nazis sent back to Germany in World War II fared better than the brutalized Venezuelans dumped in an El Salvadoran hell-hole.

Apart from the floozy duo of Alito and Thomas, it is hard to see how a majority of the U.S. Supreme Court could possibly react to the claims made under this act with anything other than a loud laugh.

But stranger things have happened.