Mr. Trump’s March 15 invocation of the Alien Enemies Act in an attempt to speed up his mass deportation effort is a good example of this phenomenon. The 227-year-old statute, which was intended to give the government broad authority over a narrow class of foreign nationals present on these shores during wartime, cannot plausibly be applied to citizens of countries with which we are at peace. Although the statute applies not just during times of declared war, but during periods of “invasion or predatory incursion” as well, that invasion or incursion must be “by any foreign nation or government.”
There may be some allure in referring to unauthorized border crossings as “invasions,” but the White House would be hard pressed to identify which “foreign nation or government” is formally behind them. Labeling the Venezuelan gang Tren de Aragua a foreign terrorist organization — or even, as the executive order calls it, a “hybrid criminal state” — doesn’t mean that it is engaged in an invasion of the United States the way the 1798 Congress used, or intended future politicians to use, the term.
In any event, by invoking the 1798 act, Mr. Trump has used a piece of legislation that expressly provides for judicial oversight. That means courts immediately had a meaningful role to play in pointing out the logical shortcomings of labeling gangs invading armies. They will have a role to play, too, in the even trickier question of how the government proves that individual detainees are members of Tren de Aragua.
Invoking the Alien Enemies Act has a lot in common with a number of Mr. Trump’s other divisive undertakings — like his effort to restrict birthright citizenship by executive order; his use of the Migrant Operations Center at Guantánamo Bay, Cuba, as a short-term way station to detain a small number of foreigners pending their deportation (many of whom have quickly, if expensively, been returned to the United States); and, more recently, the case of Mr. Khalil. In all of these contexts, the odds are better than not that, by the time the litigation challenging the Trump administration’s actions has run its course, judges will rule against the actions of the administration.
Those likely victories, if we can call them that, may prove hollow. Even if the courts rule again and again against Mr. Trump, voiding unlawful immigration arrests and releasing individuals from unlawful immigration detention doesn’t undo the harm they suffered from being arrested and detained in the first place. What remains is the broader fear it instills in immigrant communities that they could be next, and the behavior that is chilled or curtailed as a result. Likewise, ordering the government to turn back on spending taps that it has unlawfully frozen can’t undo the damage suffered by recipients deprived of mission-critical funding in the interim. Blocking an executive order intended to intimidate law firms into not representing former government officials doesn’t un-send the message about other ways the government might seek to retaliate against those who don’t toe the party line. And all of that is assuming the White House actually abides by the decisions of the courts, a point upon which we perhaps cannot rely.
