Early in American history, James Madison, the chief architect of the Constitution, warned that when the federal government seizes new powers to target foreign nationals, the rights of American citizens are at risk. The year was 1798, a time of tension with France. President John Adams was about to sign the Alien and Sedition Acts, including the Alien Enemies Act––the law the Trump administration is now citing to justify deporting hundreds of people to a brutal prison in El Salvador without due process.
Madison summed up his concerns in a letter to Thomas Jefferson. “The management of foreign relations appears to be the most susceptible of abuse of all the trusts committed to a Government,” he wrote, noting the state’s ability to conceal facts in that realm or to share them selectively. “Perhaps it is a universal truth,” he continued, “that the loss of liberty at home is to be charged to provisions against danger real or pretended from abroad.”
His concern would prove to be justified on many different occasions in ensuing centuries. And it is newly relevant today, thanks to the Trump administration’s capricious, spectacle-driven treatment of foreign nationals, some here legally, others illegally. The White House has assured the public that individuals it is deporting or trying to deport are terrible people––vicious criminals or even terrorists. But in many of those cases, it has presented little or no evidence to back up its claims, and appears to be denying due process to contest or disprove them. The administration is also targeting some people for mere speech, which it casts as evidence of terrorist sympathies.
These moves don’t just hurt foreigners; as Madison warned, they threaten Americans too, eroding the very foundations of our liberty. The Constitution imposes limits on the state in order to guard against rights violations and restrain would-be tyrants. The most important limits on state power include the Fifth Amendment’s prohibition on denying due process to anyone and the First Amendment’s prohibition on any law abridging free speech. If the legitimacy of Trump’s actions is ceded because his targets are unsympathetic foreigners, those powers will be deployed against citizens eventually.
What’s more, when the legality of the administration’s deportations has been challenged, Trump, his appointees, and some of his most powerful supporters have seemingly defied judicial orders or urged the impeachment of judges, risking a constitutional crisis that threatens another core protection against tyranny: the separation of government powers into coequal branches.
Immigration enforcement needn’t be this way. Trump was reelected with a popular mandate to deport immigrants here illegally. He could easily do so without threatening our open society. President Barack Obama deported more than 3 million people without incurring that cost. Yet, for all Trump’s “America First” rhetoric, he is choosing to target foreigners in ways that imperil the rights of Americans and the rule of law.
Two particular administration actions are illustrative.
First is Trump’s recent invocation of the Alien Enemies Act to deport 238 Venezuelans. The act says that during war or when an “invasion or predatory incursion is perpetrated, attempted, or threatened,” aliens from the enemy country can be removed. Madison used the law during the war of 1812, Woodrow Wilson used it against German nationals during World War I, and Franklin D. Roosevelt invoked it during World War II, prior to the forced internment of American citizens, the quintessential vindication of Madison’s warning. Today, the United States confronts nothing so dangerous as the Axis powers. The Trump administration is invoking this fraught law to target Venezuelans at a time when the United States is not even at war with Venezuela; it claims that the Venezuelan gang in question “is perpetrating, attempting, and threatening an invasion or predatory incursion” against the United States.
By the administration’s own admission, many of the 238 people swept up by federal agents had no criminal record here. Despite this, the Trump administration detained the individuals and put them on planes. Even after an order from a federal judge to stop the flights, U.S. officials turned the Venezuelans over to authorities in El Salvador. The deportees had no chance to argue that they weren’t in the gang in question, as lawyers and members of some of their families claim, or to challenge their removal in court. The United States isn’t even sending these deportees back to their country of origin; it is paying El Salvador to hold them for at least a year in a prison known for harsh treatment. In terms of due process, “Nazis got better treatment under the Alien Enemies Act,” another federal judge who reviewed the matter said on Monday. (Yesterday, a federal appeals court upheld a block on the administration’s use of the Alien Enemies Act to summarily deport alleged members of the Venezuelan gang.)
If legal residents who broke no laws are among the deported, or if American citizens are swept up in a future deportation carried out in the same take-our-word-for-it way, how would anyone know? This is not a speculative worry: The Government Accountability Office has found that from 2015 to 2020, “ICE arrested 674, detained 121, and removed 70 potential U.S. citizens.” Allowing due-process-free deportations of mere suspects sets a precedent that risks an American one day winding up in a foreign prison cell.
Second, Trump administration officials are targeting foreigners who came here legally—with student visas, H1-B visas, or green cards—because of their speech supporting Palestine and criticizing Israel. The most prominent target so far is Mahmoud Khalil, a green-card holder and recent graduate student at Columbia University who participated in pro-Palestinian activism and was a lead negotiator on behalf of student protesters. The Trump administration alleges that he is a supporter of Hamas, a charge that his attorney has denied, and many of his critics allege that his activism at Columbia included unlawful actions. If that is accurate, Khalil could be charged with a crime, convicted, and removed on that basis without the First Amendment being undermined. Instead the Trump administration detained him without charging him criminally or presenting any evidence connecting him to Hamas. (This week, it added new arguments for deportation: that on his green-card application, Khalil allegedly failed to disclose his work for or membership in a group at Columbia that favors divestment from Israel, the British embassy in Beirut, and the United Nations refugee agency for Palestinians; lawyers for Khalil are challenging his detention.)
Another person federal officers have tried to detain is Yunseo Chung, a Columbia student. “The Trump administration is arguing that her presence in the United States hinders the administration’s foreign policy agenda of halting the spread of antisemitism,” The New York Times reported. According to the Times, Chung, who left South Korea for the United States when she was 7 and was valedictorian of her high school, joined in but did not lead campus pro-Palestine demonstrations. Chung has filed a lawsuit challenging the attempt to arrest and deport her, arguing that the First Amendment protects her speech. The lawsuit states that earlier this month she attended a demonstration outside a campus building to protest what she saw as excessive punishments for student protesters. “Ms. Chung was arrested and given a Desk Appearance Ticket,” it adds, “a common citation issued by the police at protests.” That ticket has not yet been adjudicated.
The administration is targeting these legal residents and others, it appears, only because of their pro-Palestine, anti-Israel viewpoint—a viewpoint that the government conflates with support for Hamas and therefore for terrorism. While campaigning in New York last year, Trump declared, in reference to contemporaneous campus protests against Israel’s actions in Gaza, “One thing I do is, any student that protests, I throw them out of the country.” If Trump, as president, can violate the First Amendment’s prohibition on viewpoint discrimination when it comes to foreign students, Americans lose that limit on state power too. Even the anti-immigrant firebrand Ann Coulter objected to the administration’s actions. “There’s almost no one I don’t want to deport,” she wrote on X, “but, unless they’ve committed a crime, isn’t this a violation of the first amendment?”
In all of this, Trump is prioritizing what is bad for foreigners over what’s good for Americans. Partisans are cheering him on, arguing that the foreigners in question are bad people who are receiving harsh treatment because they “deserve” it. A more patriotic approach would focus on what American citizens deserve.
Americans deserve immigration officials who are transparent about what they do and why, not officials who offer no explanation, or conflicting explanations, for detentions and deportations. Americans deserve Homeland Security officials who are focused more on terrorists than on searching dorm rooms. And Americans deserve a president who supports a free-speech culture, obeys court orders, and fulfills rather than violates his oath by offering due process before depriving anyone of liberty. As the historian Timothy Snyder recently wrote, “If you are a citizen and you are casting doubt on the importance of due process, remember this: you need due process in order to prove that you are a citizen.”
To focus on what Americans deserve is not to imply that foreigners don’t deserve just and lawful treatment as an end in itself. Nor is it to imagine that their lives can be cleanly disentangled from those of citizens. Americans work for and hire foreigners. We date and marry them, as Trump himself did. Mistreatment of them affects us too.
Still, a president has no higher duty than to protect and defend the Constitution, that most indispensable guarantor of our rights and ability to self-govern, and to serve the citizens he represents. The current president is derelict in that highest duty; he is spending more energy undermining the rights of foreigners than conserving the rights of his countrymen.
The post How Trump’s Deportation Strategy Hurts U.S. Citizens appeared first on The Atlantic.
