Trump’s Reading of the Alien Enemies Act Defies the Usual Meaning of Its Terms
James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, has caught a lot of flak for temporarily blocking the deportation of alleged Venezuelan gang members under the Alien Enemies Act (AEA). As President Donald Trump tells it, Boasberg is a “Radical Left Lunatic of a Judge, a troublemaker and agitator” who is wrongly preventing him from “doing what the VOTERS wanted me to do.” According to Trump, Boasberg’s intervention was so egregious that he “should be IMPEACHED!!!”
A few hours after that Tuesday-morning Truth Social rant, Rep. Rep. Brandon Gill (R–Texas) followed through on Trump’s suggestion, introducing an article of impeachment that charges Boasberg with “high crimes and misdemeanors.” Specifically, Gill claims Boasberg “abused the powers of his judicial authority” by “interfering with the President’s constitutional prerogatives” and his powers under the AEA, which in Gill’s view gives Trump “sole and unreviewable discretion” to decide who qualifies as an “alien enemy” subject to immediate removal from the United States.
As Trump and Gill portray the situation, that understanding of the statute is completely uncontroversial. But if that were true, there would be no case for Boasberg to consider. Far from abusing his judicial authority, Boasberg is doing exactly what he is supposed to do as a federal judge: choosing between dueling interpretations of the law based on arguments and evidence presented in court—an adversarial process that continued at a hearing on Friday afternoon.
The attorneys representing the targets of Trump’s AEA deportations argue that he is misapplying key terms in that rarely invoked 1798 statute, which is the last remaining vestige of the notoriously repressive Alien and Sedition Acts. The AEA applies only when “there is a declared war” between the United States and a “foreign nation or government” or when a “foreign nation or government” has “perpetrated, attempted, or threatened” an “invasion or predatory incursion against the territory of the United States.” In those circumstances, it authorizes the president to deport “natives, citizens, denizens, or subjects” of that “hostile nation or government.”
Until Trump took office in January, the AEA had been invoked only three times in 226 years: during the War of 1812, World War I, and World War II. All of those situations fell into the “declared war” category. The AEA has never previously been invoked in response to a putative “invasion or predatory incursion,” the threat that Trump cites to justify peremptorily deporting suspected members of the Venezuelan gang Tren de Aragua.
In a proclamation that Trump published last Saturday, he describes Tren de Aragua as “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.” He says the gang “is closely aligned with, and indeed has infiltrated,” the Venezuelan government, “including its military and law enforcement apparatus.” He adds that “Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations,” including Tren de Aragua.
The result, Trump says, is “a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.” This is the logic by which Trump counterintutively equates Tren de Aragua with a “foreign nation or government.” If you buy that, you may also accept his claim that supected members of Tren de Aragua qualify as “natives, citizens, denizens, or subjects” of a “hostile nation or government.” But you would also have to accept that the gang’s “brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapo
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