President Trump on Saturday issued an executive order to deport Venezuelan gang members under the Alien Enemies Act of 1798, a rarely used wartime law that could allow removals with little due process.
The order declares that Venezuelans who are at least 14 years old, in the United States without authorization and part of the Tren de Aragua gang are “liable to be apprehended, restrained, secured and removed.”
The Alien Enemies Act allows for summary deportations of people from countries at war with the United States. The law, best known for its role in the internment of Japanese Americans during World War II, has been invoked three times in U.S. history — during the War of 1812, World War I and World War II — according to the Brennan Center for Justice, a law and policy organization.
Hours before the White House published its proclamation, the American Civil Liberties Union filed a lawsuit on behalf of five Venezuelan men seeking to block the president from invoking the law.
A federal judge, James E. Boasberg of the Federal District Court for the District of Columbia, issued a limited order on Saturday blocking the government from deporting the five men.
The Trump administration promptly filed an appeal of the order, and the A.C.L.U. asked the judge to broaden his order to apply to all immigrants at risk of deportation under the Alien Enemies Act.
In the lawsuit, lawyers for the American Civil Liberties Union wrote that the Venezuelans believed that they faced an immediate risk of deportation. “The government’s proclamation would allow agents to immediately put noncitizens on planes,” the lawsuit said, adding that the law “plainly only applies to warlike actions” and “cannot be used here against nationals of a country — Venezuela — with whom the United States is not at war.”
The White House and the Homeland Security Department, which runs the nation’s immigration system and was named in the lawsuit, did not immediately respond to requests for comment.
The Alien Enemies Act’s text says that it may be activated whenever “there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted or threatened against the territory of the United States.”
Noah Feldman, a constitutional law professor at Harvard, said the fate of the case, which could ultimately wind up at the Supreme Court, would hinge on “how much deference the courts pay to the president’s determination that there’s a threatened incursion.” Judges would have to make that determination “without a lot of precedent,” Professor Feldman added.
Mr. Trump, who campaigned last year on a promise to initiate the largest deportation operation in U.S. history, has often referred to the arrivals of unauthorized immigrants as an “invasion.” One of the first executive orders he issued after returning to the White House was titled, “Protecting the American People Against Invasion.”
His proclamation invoking the Alien Enemies Act appeared to be narrowly focused on Tren de Aragua, a gang that emerged from a Venezuelan prison and grew into a criminal organization focused on sex trafficking, drug dealing and human smuggling.
But the law could empower the Trump administration to arrest and remove other immigrants age 14 or older without a court hearing.
“The Trump administration’s intent to use a wartime authority for immigration enforcement is as unprecedented as it is lawless,” Lee Gelernt, a lawyer for the A.C.L.U., said in a statement. “It may be the administration’s most extreme measure yet.”
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