A quick take on some of the questions raised by President Trump's ... dubious invocation of a 1798 statute as a basis for arresting, detaining, and removing non-citizens with ties to Tren de Aragua.
Thanks for this impressive and, under the time constraints, very comprehensive overview of the issues raised by Trump's Executive Order. I would expect DOJ to press very hard on the President's foreign relations powers and national security discretion, in order to invoke some creditable doctrine of judicial deference and non-review. The Administration certainly has some chance at getting the Court of Appeals it wants, and already has three or four votes at the Supreme Court for a hands-off deference to a unitary and near-plenary presidency. Thinking ahead -- because ahead we are going -- where might a SCOTUS majority stand on these issues??
I think it would be interesting to know how long those World War II appellants were kept in detention. Even if each were subjected to a lot of case by case review, it might have taken a long time and could equally apply here and leave plenty of detainees in custody until after Trump’s presidency.
Whatever deference might have been due any proclamation by any prior president, it definitely is not due this president.
Trump is profoundly different from any president before him. He cannot be voted out of office (or re-elected). He almost certainly will not be impeached again by the House, much less convicted and removed by the Senate. He apparently could not care less about the Republican party or conservatives, generally. And, most compelling, six SCOTUS justices--for the first time in our nation's history--proclaimed that Trump (and everybody he grants pardons to) cannot be prosecuted for any of the federal crimes they commit in their wild and egregious abuses and usurpations of power.
After SCOTUS usurped the power to pretend that we delegated to SCOTUS the power to make presidents "immune" from prosecution for criminal abuses and usurpations of power, Trump campaigned for control of America's nuclear arsenal by proclaiming “If I were the president, I would inform the threatening country — in this case, Iran — that if you do anything to harm this person, we are going to blow your largest cities and the country itself to smithereens. We are going to blow it to smithereens.”
Trump (even as president) has a long and well-known history of tossing about wildly excessive proclamations, implications and threats as a negotiating tactic. He did it on and before January 6. In another example a mere month ago, Trump proclaimed, "I would like a deal done with Iran on non-nuclear. I would prefer that to bombing the hell out of it.”
Then, there is the long, well-documented record of Trump's utter disregard and disrespect for truth or factual accuracy when it is contrary to his objectives. Far too many times for me to care to try to count, Trump proved that he could not be trusted to tell the truth or be accurate as to material facts (except to the extent it might benefit him). Everything for this president is a matter of bluff, bluster and negotiation (often through intimidation).
Long ago, I learned who Trump was from Trump, himself. I read his book, "The Art of the Deal." Trump pretty explicitly boasted that the art of his deal was the manipulation of perception, and sometimes, specifically, the practice of deception. Moreover, what motivates this man is money and the power it can buy. I would not be even slightly surprised to learn that Trump's true objective is getting a piece of Maduro's pie.
When Trump speaks of the corruption of government, we all should listen. Trump knows what he's talking about. Trump knows corruption. No rational person could reasonably defer to any proclamation by any such president.
"(The government’s appellate brief puts forward the regrettable argument that one acceptable definition of invasion is “the arrival somewhere of people or things who are not wanted there”—a ludicrously low bar)." Hmmm, under this definition are Musk's people an invasion?
Politico: "Federal Judge halts Trump's [ & Pamela Jo Bondi ] deportations invoking the [1798] Alien Enemies Act". The case is an active & successful ACLU lawsuit.
Kudos to Politico's top legal Reporters: MYAH WARD, Kyle Cheney, Ali Bianco & Josh Gerstien all of which are in the Top 10 of our Country's legal reporters.
In regard to the people who were sent to El Salvador yesterday, was there any judicial determination that they were members of TdA? Or did ICE simply declare them TdA and, thus, deportable under the EO. And is there any U.S. judicial recourse for them now that they’re in an El Salvadoran prison?
Not directly on point, but I recently posted a query about the meaning of "predatory incursion". It is not "invasion" under Art 4 and the Proclamation relies on terrorist statute. If you aid or abet a cyberattack will you not only be criminally charged, but deported?
Assuming the courts are willing to defer to the executive on the invasion question but still insist on reviewing the membership status of each individual potential deportee, does this EO make it easier for the government to detain people pending removal proceedings?
Good question. But, do not assume all federal courts are willing to defer an EO. Note WELL a federal Judge I have appeared before, Judge William H. Alsup, "Bill" in the Northern District of California. Judge Alsup has Musk-OPM has ... ahh has ... looking for the proper legal phrase ... has Musk-OPM by the balls.
Oh yeah, Judge Alsup ordered OPM Director (NOT) Charles Ezell to testify at Thursday's court Hearing.
Please note, Popcorn 🍿cannot be eaten during Court sessions.
The scan of the statute refers to 'males of the age fourteen years and upwards', but the EO seems to refer to all Venezuelans citizens including females. Had the Alien Enemy Act been rewritten or was there a general acknowledgement that references to only one sex shall include both sexes? Given the current governments obsession with gender, and the clear text of the original act, it seems curious.
All of which begs the question to some degree. It looks like the Government (it pains me to type that) 1. made an agreement with El Salvador to imprison these individuals, 2. rounded them up, 3. got them ready to transport, 4. issued Trump's emergency order accompanied by necessary actions by Sec. of State Rubio and El Salvador and then, immediately did "wheels up." By the time the Court acted, even with the ACLU "at the ready" these individuals were in Salvadoran custody )"oopsie...too late"). All niceties aside, when criminals take over the government, the government is a criminal enterprise.
This is a more general question but aren't lawyers obligated to present good faith arguments based on evidence in court? The argument that TdA is the Venezuelan government or a separate foreign nation is absurd on its face and there is no evidence supporting it. I know that courts are loath to sanction lawyers, especially DOJ lawyers, but there are now several examples of Trump's DOJ presenting arguments more akin to throwing spaghetti at the wall to see what will stick than to making substantive legal arguments. Can courts do anything to push back on this abuse and waste of time?
Thank you for this impressively prompt and insightful consideration of this vitally important issue. My first thought was that Trump was guilty of a mere veneer of pretending to construe and comply with this law reminiscent of the characterization of Vice President Thomas Jefferson of abuses of the Alien and Sedition Acts in his time ("a reign of witches" that will "pass over" and "their spells dissolve" when "the people recovering their true sight, restore their government to it’s true principles"). https://founders.archives.gov/documents/Jefferson/01-3002-0280.
My second thought was that Trump might be right, and I look forward to seeing the proof that the government of a foreign nation is doing what Trump proclaimed. Maybe this is today's equivalent of Bush's WMD's in Iraq. Maybe not. These might turn out to be fascinating proceedings.
By "anyone" you mean "anyone who originated as a native of Venezuela and is not engaged in legitimate business, labor or self-paid tourism"? Why does this possibility bother you? Have you never heard of Global Warming? According to President Obama's declaration that Climate Change is the Number One Threat, the simple fact that people from southern/equatorial nations have intentionally and illegally multiplied their carbon footprint by illegally entering and residing in the United States of itself justifies the declaration of hostile incursion and invocation of the Enemy Alien Act.
If Trumps actions are upheld, one could envision a brighter day in which the precedents are used against Musk and others who seek a cyber nation separate from the US.
The president's power to implement this law without a declaration of war by Congress should be seen as analogous to state powers (under Article I, Section 9) to "engage in War" when "actually invaded, or in such imminent Danger as will not admit of delay." The crucial limitation is the requirement of "such imminent Danger as will not admit of delay." Absent such circumstances, only Congress has the power to start a war. Invoking this statute seems to me to necessarily be the equivalent of a presidential act of war. The statute clearly was designed to respond to an actual act of war: "a declared war" with a "foreign nation or government, or any invasion or predatory incursion" by a "foreign nation or government."
I also think it's legally impossible to treat immigration as being within the scope of "invasion" or "predatory incursion." The statute was enacted in 1798. Our Constitution was ratified in 1788. In Article I, Section 9, it specifically addressed "Migration" until "the Year one thousand eight hundred and eight," and (from ratification in 1788 until 1808) "Congress" was expressly denied the power to prohibit any "Migration" of "such Persons as any of the States now existing shall think proper to admit." That prohibition was reiterated in Article V. If migration was within the scope of "invasion" or "predatory incursion," then Congress would have unconstitutionally usurped the power to prohibit it even if a state wanted to permit it.
As Professor Vladeck said, this law targeted French citizens because in 1798, the U.S. already was involved in the Quasi-War with France (the French were attacking and seizing American ships). But many states in the south were very pro-French and very anti-Federalist (and the U.S. government then was controlled by Federalists). So, if Trump is correct now, then back in 1798, the U.S. government could have treated migration of French citizens as, itself, an invasion or predatory incursion by France. That clearly wasn't the intent.
"Rather, it applies only to those who are 14 or older; who are neither naturalized citizens of the United States nor lawful permanent residents; and who are 'members' of TdA." Per the language of the act, does it not also apply only to those who are male?
Thanks for this impressive and, under the time constraints, very comprehensive overview of the issues raised by Trump's Executive Order. I would expect DOJ to press very hard on the President's foreign relations powers and national security discretion, in order to invoke some creditable doctrine of judicial deference and non-review. The Administration certainly has some chance at getting the Court of Appeals it wants, and already has three or four votes at the Supreme Court for a hands-off deference to a unitary and near-plenary presidency. Thinking ahead -- because ahead we are going -- where might a SCOTUS majority stand on these issues??
I think it would be interesting to know how long those World War II appellants were kept in detention. Even if each were subjected to a lot of case by case review, it might have taken a long time and could equally apply here and leave plenty of detainees in custody until after Trump’s presidency.
Yes!!
Whatever deference might have been due any proclamation by any prior president, it definitely is not due this president.
Trump is profoundly different from any president before him. He cannot be voted out of office (or re-elected). He almost certainly will not be impeached again by the House, much less convicted and removed by the Senate. He apparently could not care less about the Republican party or conservatives, generally. And, most compelling, six SCOTUS justices--for the first time in our nation's history--proclaimed that Trump (and everybody he grants pardons to) cannot be prosecuted for any of the federal crimes they commit in their wild and egregious abuses and usurpations of power.
After SCOTUS usurped the power to pretend that we delegated to SCOTUS the power to make presidents "immune" from prosecution for criminal abuses and usurpations of power, Trump campaigned for control of America's nuclear arsenal by proclaiming “If I were the president, I would inform the threatening country — in this case, Iran — that if you do anything to harm this person, we are going to blow your largest cities and the country itself to smithereens. We are going to blow it to smithereens.”
Trump (even as president) has a long and well-known history of tossing about wildly excessive proclamations, implications and threats as a negotiating tactic. He did it on and before January 6. In another example a mere month ago, Trump proclaimed, "I would like a deal done with Iran on non-nuclear. I would prefer that to bombing the hell out of it.”
Then, there is the long, well-documented record of Trump's utter disregard and disrespect for truth or factual accuracy when it is contrary to his objectives. Far too many times for me to care to try to count, Trump proved that he could not be trusted to tell the truth or be accurate as to material facts (except to the extent it might benefit him). Everything for this president is a matter of bluff, bluster and negotiation (often through intimidation).
Long ago, I learned who Trump was from Trump, himself. I read his book, "The Art of the Deal." Trump pretty explicitly boasted that the art of his deal was the manipulation of perception, and sometimes, specifically, the practice of deception. Moreover, what motivates this man is money and the power it can buy. I would not be even slightly surprised to learn that Trump's true objective is getting a piece of Maduro's pie.
When Trump speaks of the corruption of government, we all should listen. Trump knows what he's talking about. Trump knows corruption. No rational person could reasonably defer to any proclamation by any such president.
"(The government’s appellate brief puts forward the regrettable argument that one acceptable definition of invasion is “the arrival somewhere of people or things who are not wanted there”—a ludicrously low bar)." Hmmm, under this definition are Musk's people an invasion?
Politico: "Federal Judge halts Trump's [ & Pamela Jo Bondi ] deportations invoking the [1798] Alien Enemies Act". The case is an active & successful ACLU lawsuit.
Kudos to Politico's top legal Reporters: MYAH WARD, Kyle Cheney, Ali Bianco & Josh Gerstien all of which are in the Top 10 of our Country's legal reporters.
Good one lead Author, Myah!
In regard to the people who were sent to El Salvador yesterday, was there any judicial determination that they were members of TdA? Or did ICE simply declare them TdA and, thus, deportable under the EO. And is there any U.S. judicial recourse for them now that they’re in an El Salvadoran prison?
Not directly on point, but I recently posted a query about the meaning of "predatory incursion". It is not "invasion" under Art 4 and the Proclamation relies on terrorist statute. If you aid or abet a cyberattack will you not only be criminally charged, but deported?
Good point Brooks White.
Assuming the courts are willing to defer to the executive on the invasion question but still insist on reviewing the membership status of each individual potential deportee, does this EO make it easier for the government to detain people pending removal proceedings?
Good question. But, do not assume all federal courts are willing to defer an EO. Note WELL a federal Judge I have appeared before, Judge William H. Alsup, "Bill" in the Northern District of California. Judge Alsup has Musk-OPM has ... ahh has ... looking for the proper legal phrase ... has Musk-OPM by the balls.
Oh yeah, Judge Alsup ordered OPM Director (NOT) Charles Ezell to testify at Thursday's court Hearing.
Please note, Popcorn 🍿cannot be eaten during Court sessions.
😂😂😂 on the popcorn!!!
The scan of the statute refers to 'males of the age fourteen years and upwards', but the EO seems to refer to all Venezuelans citizens including females. Had the Alien Enemy Act been rewritten or was there a general acknowledgement that references to only one sex shall include both sexes? Given the current governments obsession with gender, and the clear text of the original act, it seems curious.
The current version isn’t gender-specific:
https://www.law.cornell.edu/uscode/text/50/21
When did that change?
April 16, 1918 (look at the bottom of the statute in the link SV provided. You will find a date and also a link to Stat (with the text as amended).
This was actually worse than I thought:
https://www.axios.com/2025/03/16/trump-white-house-defy-judge-deport-venezuelans?stream=top&utm_source=alert&utm_medium=email&utm_campaign=alerts_all
So much for Judicial Review of actions by the Executive!
Yep.
All of which begs the question to some degree. It looks like the Government (it pains me to type that) 1. made an agreement with El Salvador to imprison these individuals, 2. rounded them up, 3. got them ready to transport, 4. issued Trump's emergency order accompanied by necessary actions by Sec. of State Rubio and El Salvador and then, immediately did "wheels up." By the time the Court acted, even with the ACLU "at the ready" these individuals were in Salvadoran custody )"oopsie...too late"). All niceties aside, when criminals take over the government, the government is a criminal enterprise.
This is a more general question but aren't lawyers obligated to present good faith arguments based on evidence in court? The argument that TdA is the Venezuelan government or a separate foreign nation is absurd on its face and there is no evidence supporting it. I know that courts are loath to sanction lawyers, especially DOJ lawyers, but there are now several examples of Trump's DOJ presenting arguments more akin to throwing spaghetti at the wall to see what will stick than to making substantive legal arguments. Can courts do anything to push back on this abuse and waste of time?
Thank you for this impressively prompt and insightful consideration of this vitally important issue. My first thought was that Trump was guilty of a mere veneer of pretending to construe and comply with this law reminiscent of the characterization of Vice President Thomas Jefferson of abuses of the Alien and Sedition Acts in his time ("a reign of witches" that will "pass over" and "their spells dissolve" when "the people recovering their true sight, restore their government to it’s true principles"). https://founders.archives.gov/documents/Jefferson/01-3002-0280.
My second thought was that Trump might be right, and I look forward to seeing the proof that the government of a foreign nation is doing what Trump proclaimed. Maybe this is today's equivalent of Bush's WMD's in Iraq. Maybe not. These might turn out to be fascinating proceedings.
Note: EO does not say "is" TDA, or even "accused" of being TDA... It says "deemed" TDA, which the Orange Stained Hitler can choose to do for *anyone*
By "anyone" you mean "anyone who originated as a native of Venezuela and is not engaged in legitimate business, labor or self-paid tourism"? Why does this possibility bother you? Have you never heard of Global Warming? According to President Obama's declaration that Climate Change is the Number One Threat, the simple fact that people from southern/equatorial nations have intentionally and illegally multiplied their carbon footprint by illegally entering and residing in the United States of itself justifies the declaration of hostile incursion and invocation of the Enemy Alien Act.
See https://tinyurl.com/Against-Human-Supremacy ]
Also available with copy-paste of the original share link at
https://aistudio.google.com/app/prompts?state=%7B%22ids%22:%5B%221WdlRL4qEvr8j0Uf7BINgbKpMe9u5ykiN%22%5D,%22action%22:%22open%22,%22userId%22:%22107024143318048300561%22,%22resourceKeys%22:%7B%7D%7D&usp=sharing
Narrow question, I'm trying to figure out what work 50 USC 23 which provides for hearings before Article 3 judges does?
If Trumps actions are upheld, one could envision a brighter day in which the precedents are used against Musk and others who seek a cyber nation separate from the US.
The president's power to implement this law without a declaration of war by Congress should be seen as analogous to state powers (under Article I, Section 9) to "engage in War" when "actually invaded, or in such imminent Danger as will not admit of delay." The crucial limitation is the requirement of "such imminent Danger as will not admit of delay." Absent such circumstances, only Congress has the power to start a war. Invoking this statute seems to me to necessarily be the equivalent of a presidential act of war. The statute clearly was designed to respond to an actual act of war: "a declared war" with a "foreign nation or government, or any invasion or predatory incursion" by a "foreign nation or government."
I also think it's legally impossible to treat immigration as being within the scope of "invasion" or "predatory incursion." The statute was enacted in 1798. Our Constitution was ratified in 1788. In Article I, Section 9, it specifically addressed "Migration" until "the Year one thousand eight hundred and eight," and (from ratification in 1788 until 1808) "Congress" was expressly denied the power to prohibit any "Migration" of "such Persons as any of the States now existing shall think proper to admit." That prohibition was reiterated in Article V. If migration was within the scope of "invasion" or "predatory incursion," then Congress would have unconstitutionally usurped the power to prohibit it even if a state wanted to permit it.
As Professor Vladeck said, this law targeted French citizens because in 1798, the U.S. already was involved in the Quasi-War with France (the French were attacking and seizing American ships). But many states in the south were very pro-French and very anti-Federalist (and the U.S. government then was controlled by Federalists). So, if Trump is correct now, then back in 1798, the U.S. government could have treated migration of French citizens as, itself, an invasion or predatory incursion by France. That clearly wasn't the intent.
"Rather, it applies only to those who are 14 or older; who are neither naturalized citizens of the United States nor lawful permanent residents; and who are 'members' of TdA." Per the language of the act, does it not also apply only to those who are male?