Legal Fight Underway as Trump Invokes Alien Enemies Act of 1798 for Deportations

Even before U.S. President Donald Trump on Saturday publicly revealed that he was invoking the Alien Enemies Act, legal groups took action, which led to a federal judge temporarily blocking the administration from using the 1798 law for deportations.

Chief Judge James Boasberg of the District Court for the District of Columbia issued "a classwide, nationwide temporary restraining order, blocking removal of any noncitizens in U.S. custody who are subject to today's AEA order for the next 14 days," according toLaw Dork's Chris Geidner. Earlier in the day, the judge had issued a TRO for the individual plaintiffs in this case.

Like Geidner, American Immigration Council senior fellow Aaron Reichlin-Melnick shared updates from the evening hearing on social media. He noted that the ACLU said at least two planes were en route to El Salvador and Honduras. The judge—an appointee of former President Barack Obama—ordered any planes in the air to turn around but said he could not take action for any aircraft that had landed.

The national and D.C. arms of the ACLU launched the lawsuit with Democracy Forward, whose president and CEO, Skye Perryman, stressed early Saturday that "the United States is not at war, nor has it been invaded. The president's anticipated invocation of wartime authority—which is not needed to conduct lawful immigration enforcement operations—is the latest step in an accelerating authoritarian playbook."

"From improperly apprehending American citizens, to violating the ability of communities to peacefully worship, to now improperly trying to invoke a law that is responsible for some of our nation's most shameful actions, this administration's immigration agenda is as lawless as it is harmful," Perryman added. The AEA was most recently used during World War II to force thousands of people of mostly German, Italian, and Japanese descent in internment camps.

Lee Gelernt, lead counsel and deputy director of the ACLU's Immigrants' Rights Project, called Trump's move "as unprecedented as it is lawless," and said that "it may be the administration's most extreme measure yet, and that is saying a lot."

After the initial TRO, Perryman said that "yet again, the judicial system is essential to protect our democracy. We collaborated through the night with our co-counsel to ensure that the president could not invoke wartime powers to deal with his policy challenges. 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 wartime powers when the nation is not at war—and has not been invaded—are protected."

Following Boasberg's final decision Saturday, the broader TRO, Perryman declared that "today was a horrific day in the history of the nation," but "the rule of law prevailed."

The legal battle stems from an effort to deport five Venezuelans accused of being involved with the gang Tren de Aragua (TdA), but based on Trump's comments on the campaign trail—and his recent designation of multiple cartels as terrorist groups—the president is expected to seek a wider use of the AEA to deliver on his promised mass deportations.

Trump's proclamation, dated Friday but released Saturday, says TdA "is a designated foreign terrorist organization with thousands of members, many of whom have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States. TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking."

"TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime's goal of destabilizing democratic nations in the Americas, including the United States," Trump said. "I proclaim that all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as alien enemies."

The legal fight is far from over. The next hearing before Boasberg is scheduled for Friday afternoon. The groups behind the lawsuit were not alone in sounding the alarm about Trump's invocation of the 18th-century law.

FWD.us president Todd Schulte said in a statement that "the Alien Enemies Act was last used to incarcerate 120,000 Japanese-Americans and tens of thousands of others during World War II. Its use was a mistake and a tragedy."

"There should be no effort to invoke this law today or in the future—against anyone, no matter their immigration status, be they an adult or child, as is proposed in today's declaration," he asserted. "Actions like this have no place in the immigration system or country we should seek to build."

Allison McManus, managing director for national security and foreign policy at the Center for American Progress, said that "invoking the Alien Enemies Act is a dangerous abuse of power intended to deprive people of their legal rights. This announcement comes just one day after the president threatened to use the Department of Justice against his critics, raising the likelihood that these powers will be exploited and put the safety of any American who speaks out against this administration at risk."

McManus added that "every American, regardless of their politics, should be concerned that the president is granting himself powers last invoked to detain thousands of Japanese Americans in internment camps during World War II—one of the most shameful times in U.S. history."