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Donald Trump has invoked the wartime Alien Enemies Act of 1798 to deport five Venezuelan nationals from the US.
In a presidential proclamation issued on Saturday, the White House said: “Tren de Aragua (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.”
The invocation of the wartime act comes just hours after a federal judge temporarily blocked Trump’s administration from using the 1798 Act to carry out its intended deportations of the Venezuelans.
On Saturday, US district judge James Boasberg of the federal district court in Washington DC agreed to issue temporary restraining order that prevents the Venezuelans’ deportation for 14 days.
“Given the exigent circumstances that it [the court] has been made aware of this morning, it has determined that an immediate Order is warranted to maintain the status quo until a hearing can be set,” Boasberg wrote in his order.
Boasberg’s decision comes in response to a lawsuit filed the same day by the American Civil Liberties Union and Democracy Forward. The organizations charge that the Trump administration unlawfully invoked the Alien Enemies Act.
In the lawsuit, ACLU and Democracy Forward argue the act has been invoked only three times in the history of the US: the war of 1812, first world war and second world war.
“It cannot be used here against nationals of a country – Venezuela – with whom the United States is not at war, which is not invading the United States and which has not launched a predatory incursion into the United States,” the lawsuit stated.
“The government’s proclamation would allow agents to immediately put noncitizens on planes without any review of any aspect of the determination that they are alien enemies,” the lawsuit added.
A remote hearing has been scheduled for today at 5pm before Boasberg. Both ACLU and Democracy Forward will ask that the temporary restraining order be broadened to everyone in danger of removal under the act, the civil liberties organizations said.
The president had previously ordered his administration to designate Venezuela’s Tren De Aragua gang as a foreign terrorist organization.
With Trump characterizing the gang as a foreign force that is invading the US, civil liberties organizations such as the ACLU fear that Trump may invoke the 1798 act “unlawfully during peacetime to accelerate mass deportations, sidestepping the limits of this wartime authority and the procedures and protections in immigration law.”
The invocation is expected to face legal challenges almost immediately. The 227-year-old law is designed to primarily be used in wartime, and only Congress has the authority to declare a war. But the president does have the discretion to invoke the law to defend against a “threatened or ongoing invasion or predatory incursion”, according to the Brennan Center for Justice, a non-partisan authority on law and policy.
“This law shouldn’t be invoked because migration is not an invasion, and we’re not in a war time,” said Juliana Macedo do Nascimento, the deputy director of federal advocacy for United We Dream, an immigrant rights organization. “It’s extremely horrifying that we, as immigrants, are being labeled as terrorists, as invaders.”
Those subject to the Alien Enemies Act could be deported without a court hearing or asylum interview, and their cases would be governed by wartime authority rather than by immigration law.
The Alien Enemies Act specifically allows the president to detain, relocate, or deport immigrants based on their country of ancestry – and crucially covers not only citizens of hostile nations but also “natives”, which could include people who may have renounced their foreign citizenship and sought legal residency in the US.
The centuries-old law was also used to arrest more than 31,000 people – mostly people of Japanese, German and Italian ancestry – as “alien enemies” during the second world war, and played a role in the mass removal and incarceration of Japanese Americans during the war.
Trump has been building his case for invoking the act for years by characterizing the influx of migrants at the southern border as an “invasion”. He also previewed his invocation in an executive order on his inauguration day, directing the secretaries of state to plan by preparing facilities “necessary to expedite the removal” of those subject to the act.
“By invoking the Alien Enemies Act of 1798, I will direct our government to use the full and immense power of federal and state law enforcement to eliminate the presence of all foreign gangs and criminal networks bringing devastating crime to US soil, including our cities and inner cities,” he said in his inaugural address.
Though anti-immigrant politicians and groups have long advocated for the use of the act in response to unlawful border crossings, Macedo do Nascimento said a number of executive orders and congressional policies have already broadened the federal government’s authorities to detain and deport immigrants.
“There are already laws that allow for mass detention. There are already laws, like the Laiken Riley Act, that would broaden the dragnet of people who can be detained,” Macedo do Nascimento said. “So the idea of him invoking the Alien Enemies Act feels kind of needless. To me, it is really about building the narrative to label immigrants as terrorists.”
