WASHINGTON – A federal judge has temporarily blocked President Donald Trump’s anticipated use of the Alien Enemies Act against five Venezuelan citizens who are detained in U.S. jails and fear the 1798 law could lead to their immediate deportation.
The law allows the deportation without a hearing of anyone from the designated enemy country who is not a naturalized citizen. The law has only been invoked three times while the country was at war, to hasten the removal of citizens of enemy countries. But Trump is reportedly considering invoking it soon.
Chief U.S. District Judge James Boasberg in Washington, D.C., granted a temporary restraining order Saturday and ordered the government not to deport the men for at least 14 days while the case is litigated.
Boasberg scheduled a hearing Saturday evening in the case, to determine whether it should be considered a class action for more people than the five participating in the lawsuit. Another hearing is scheduled Monday.
“Yet again, the judicial system is working to protect our democracy,” Skye Perryman, CEO of Democracy Forward, the advocacy group representing the Venezuelans, said in a statement. “We are gratified to see the judge’s decision and will work on the next stages to ensure those impacted by this dangerous move to invoke war time powers when the nation is not at war — and has not been invaded – are protected.”
The American Civil Liberties Union is also representing the Venezuelans.
The government hasn’t formally responded to the lawsuit yet.
But Trump has repeatedly described Mexican drug cartels and Venezuelan criminal gangs in war-like terms, such as protecting against an “invasion.” He has already declared cartels and the Tren de Aragua gang terrorists. He campaigned on invoking the Alien Enemies Act and mentioned it again during his inauguration.
The Venezuelans, who are identified only by their initials in the lawsuit, fear the order will label their arrival an “invasion” or “predatory incursion” by a “foreign nation or government” because Trump has designated Tren de Aragua, a Venezuelan gang, as a foreign terrorist organization that might be deemed akin to a foreign nation or government.
The five Venezuelans fear deportation because they are already jailed based on immigration issues and are suspected members of Tren de Aragua, which they deny. They worry they will be deported as quickly as this weekend.
For example, one man in a Texas jail has tattoos but denies being a member of the gang. He fears being killed by Venezuelan police if he is returned to that country and has a pending asylum application.
Congress approved the Alien Enemies Act in anticipation of another war against the United Kingdom. It has been invoked three times: during the War of 1812, World War I and World War II, according to Katherine Yon Ebright, a counsel at the Brennan Center for Justice at New York University.
The law says a president can invoke it during “a declared war” with a foreign nation or government, or when “any invasion or predatory incursion is perpetrated, attempted or threatened” against the United States.
If invoked, the foreign citizen could “be apprehended, restrained, secured, and removed as alien enemies.”
Despite being invoked during wars, former Presidents Woodrow Wilson and Harry Truman each continued to enforce the law after the end of hostilities, Ebright said. Wilson used it to detain German and Austro-Hungarian immigrants for two years after the end of World War I in 1918. Truman used it for detentions and deportations for six years after the end of World War II in 1945.
The Supreme Court upheld Truman’s extension in 1948 by reasoning the end of wartime authorities is a “political” matter.
“It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come,” Justice Felix Frankfurter wrote in the 5-4 decision. “These are matters of political judgment for which judges have neither technical competence nor official responsibility.”
