Federal Judges Limit Trump’s Use of Wartime Powers to Deport People

Several federal judges have ordered the Trump administration to provide due process to individuals that the federal government is detaining and deporting. The Trump administration is using the Alien Enemies Act to justify its rampant deportations. The last time the Alien Enemies Act was invoked was during World War II, to intern people of Japanese, German, and Italian descent. The law authorizes the president to deport, detain or place restrictions on individuals whose primary allegiance is to a foreign power and who might pose a national security risk in wartime.

The Trump administration has designated Tren de Aragua as a foreign terrorist organization and attempted to deport Venezuelans on that basis. The deported Venezuelans have denied they are Tren de Aragua members. The Venezuelans assert they were never given the chance to contest the administration’s allegations. Deportees are being sent by the administration to El Salvador’s massive anti-terrorism prison under a deal in which the United States is paying President Nayib Bukele’s government $6 million.

Two separate federal judges extended temporary blocks on deportations of Venezuelan migrants. The judges provided the first rulings on how the Trump administration can ensure due process rights since the U.S. Supreme Court ordered migrants be given the opportunity to challenge their removals in court. The Supreme Court in its order did not specify how much notice migrants should be given, nor did it determine the validity of the administration’s use of the Alien Enemies Act.

In Denver, U.S. District Judge Charlotte Sweeney ruled that the federal government must give Venezuelan migrants detained in Colorado notice 21 days before any deportations under the Alien Enemies Act and must inform them of their right to challenge their removal. Judge Sweeney wrote that the ACLU was likely correct that the Alien Enemies Act was inapplicable because Tren de Aragua’s presence in the United States did not amount to an act of war.

In Manhattan, U.S. District Judge Alvin Hellerstein required the administration to notify Venezuelans at least 10 days in advance before deporting them. Judge Hellerstein said he understands Trump’s desire to move quickly on deportations but that the administration must afford migrants due process.

Hellerstein also said Trump’s March 15 order invoking the law to deport hundreds of men accused of being members of the Venezuelan gang Tren de Aragua to a prison in El Salvador may run afoul of the U.S. Constitution’s Eighth Amendment protections against cruel and unusual punishment.

Why are Federal Judges Allowed to Block a President’s Orders?

Some people have questioned how federal trial judges can block the President’s orders. Federal trial judges are the lowest members of the judiciary while the President is the highest member of the executive branch.

First, the Constitution itself gives such powers to federal trial courts. Article III of the Constitution states, “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” In other words, “inferior Courts” have the same judicial power as the Supreme Court. The Constitution makes no distinction between the Supreme Court and the lower courts other than the fact that the Supreme Court’s rulings control the lower courts.

Second, federal trial judges are interpreting federal laws in their decisions. Since federal laws apply to the entire country, it makes no sense that a decision limiting a federal agency’s powers would only be limited to Denver or Manhattan if the federal agency operates nationwide. If a judge intends to limit a federal agencies’ powers that limitation would apply to the entire agency regardless of where the judge may be located.

Finally, the trial courts are acting consistent with the Supreme Court’s directives. The Supreme Court had previously ordered in a 9-0 decision that deportees are to be given due process. The Supreme Court has not determined the details of what that due process would look like but left it up to the trial courts to fill in those gaps.

Why Does Due Process Matter?

Some people have questioned why “illegals,” “terrorists,” or “criminals” should be given due process. Due process means, in part, that the punishment should come after the crime. It is the role of the courts to decide who is innocent and who is guilty, not the President, federal prosecutors, or federal agents.

If the government accuses someone of being a terrorist, that person has a right to an attorney and a jury of their peers to determine if that person is, in fact, a terrorist. If that person is found not guilty, whether by a judge or jury, that person should be released. Due process is necessary to separate the innocent from the guilty, and American law has always assumed that it is better to let the guilty free than to falsely imprison the innocent.

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