Key Points – The Trump administration’s strategy of using the 1798 Alien Enemies Act (AEA) to deport alleged members of the Venezuelan gang Tren de Aragua faces a fractured legal landscape.
-On May 13th, a Pennsylvania federal judge (Stephanie Haines, a Trump appointee) became the first to uphold the administration’s legal theory that the gang constitutes an “incursion” under the AEA, though she limited rapid deportations without due process.
-This ruling conflicts with earlier May 1st and another May 13th Texas court decision that blocked such AEA use as exceeding the law’s scope. These diverging opinions suggest the issue is likely headed for the Supreme Court.
Trump Wins in Court on Mass Deportations
Earlier this year, the Trump Administration began using a novel legal strategy concerning his plans to deport large numbers of undocumented immigrants: To invoke the Alien Enemies Act, a little-used law that dates back to 1798, when it was signed by President John Adams. It has been invoked just three times in U.S. history, and none since World War II.
The legal theory is that Tren de Aragua, a Venezuelan gang, meets the AEA’s standard for an “incursion” into the United States.
The use of the Alien Enemies Act has been controversial, and on May 1, a Texas judge ruled that Trump’s use of it “exceeds the scope” of that law. That ruling blocked the Trump Administration from continuing to detain, remove, or transfer Venezuelans in the Southern District of Texas while invoking the Alien Enemies Act.
That ruling was issued by U.S. District Judge Fernandez Rodriguez, a Trump appointee from his first term. It does allow deportations using other, non-AEA justifications. Other judges have issued similar rulings on the AEA question.
Two weeks later, a ruling on the question has gone Trump’s way.
Victory in Court: A Ruling Goes Trump’s Way
On Tuesday, U.S. District Judge Stephanie Haines, a Trump appointee in Pennsylvania, backed Trump’s legal theory. She’s the first judge to rule in Trump’s favor on that question, Axios reported.
“This case poses significant issues that are deeply interwoven with the constitutional principles upon which this Nation’s government is founded,” Haines wrote in the decision, per NPR. “In approaching these issues, the Court begins by stressing the questions that it is not resolving at this time.”
“Having done its job, the Court now leaves it to the Political Branches of the government, and ultimately to the people who elect those individuals, to decide whether the laws and those executing them continue to reflect their will,” the judge wrote in the ruling.
The AEA can be used for Venezuelan nationals who are at least 14 years old, are located in the U.S., do not have legal immigration status and are established as members of Tren de Aragua.
But according to Politico, the ruling isn’t a complete victory for the Trump Administration. The Judge ruled that the Administration cannot “deport those targeted by the Alien Enemies Act quickly, sometimes within hours, with limited due process.”
Also, on the same day, a federal judge in the Western District of Texas temporarily barred the Administration from deporting people in that region under the AEA.
A District Split
Now that two different district courts have ruled the opposite way on the question, it seems likely that the Alien Enemies Act question will ultimately be dealt with by the U.S. Supreme Court, although it might not be for a while.
The U.S. Supreme Court already ruled that the administration can, for now, deport alleged Venezuelan gang members to El Salvador, but must grant them the chance to challenge their deportations.
“The detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal,” the Supreme Court said in that ruling, which did not make a final determination on the constitutionality of using the AEA for that purpose.
Speaking of the Supreme Court, the Trump Administration earlier this week asked the Supreme Court for permission to deport 176 Venezuelan migrants who are currently detained in Texas, ABC News reported. The Administration claims they are members of Tren de Aragua, and “have proven to be especially dangerous to maintain in prolonged detention.”
This follows an incident at the detention facility in which 23 migrants “threatened to take hostages and injure facility contract staff and ICE officers.”
ICE official Joshua Johnson told ABC that “the detainees failed to comply with orders to dismantle the barricades and were barricaded in the housing unit for several hours.”
About the Author: Stephen Silver
Stephen Silver is an award-winning journalist, essayist and film critic, and contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. For over a decade, Stephen has authored thousands of articles that focus on politics, technology, and the economy. Follow him on X (formerly Twitter) at @StephenSilver, and subscribe to his Substack newsletter.
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