In the McCarthy era there was perhaps the most widespread repression, but it was driven by concern that the Soviet Union sought to overthrow the United States by force — a fear that while greatly exaggerated was not entirely unfounded. And the George W. Bush administration’s deployment of torture, disappearances, so-called black sites and warrantless collection of phone data on Americans was, of course, a response to the terrorist attacks on 9/11.
In none of these cases did the threats justify the means adopted. They are all correctly seen, in retrospect, as severe overreactions and lamentable failures to live up to our ideals. The existence of such threats at least helps explain what happened, even if it does not make it right.
What is different this time is that there simply is no national security threat. To be sure, Mr. Trump has invoked the language of “invasion,” “enemies” and “emergency” — but we have not been invaded. That students are criticizing, however harshly, the Israel Defense Forces or that law firms work on cases in opposition to the president’s interests does not make them enemies. In other words, the only emergencies are of Mr. Trump’s creation, as he erratically stops payment on obligated contracts, announces and lifts tariffs within days, and fires and rehires federal employees. He has deployed troops to the Southern border, but needlessly, as border crossings are lower than they have been in years, having already fallen substantially over the last year of the Biden administration.
Last week, Mr. Trump invoked the Alien Enemies Act of 1798 to justify deporting Venezuelans he alleges are members of a gang. But by its terms that law applies only in wars declared by Congress or an actual invasion by a foreign state; it authorizes detention and deportation of nationals of a country with which we are at war. It was last used during World War II, because that was the last declared war we fought.
It was not used during the conflicts in Korea, Vietnam, Iraq or Afghanistan — because none of those were declared wars. We have not declared war on Venezuela, nor has that nation invaded us, so Mr. Trump’s invocation is plainly unconstitutional, as a federal judge ruled almost as soon as the order was issued. Now the Trump administration’s lawyers are invoking national security, again without a shred of justification, to avoid giving the judge information that may show they defied his order.
