Donald Trump’s fight to use the Alien Enemies Act (AEA) to deport criminals and gang members was just dealt another blow.
Last week, the Supreme Court more or less ended the question, blocking the use of the AEA, with only two justices, Thomas and Alito, dissenting from the opinion.
As Trump was fighting in the courts regarding his deportation flights, the administration finally committed to using the AEA, a wartime piece of legislation, to deport criminal migrants.
Trump posted a presidential action, stating, “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.
“TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking.
“TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.”
When Trump was initially challenged, the case had been filed in a court that did not have the proper jurisdiction, so the plaintiffs were instructed to refile in the proper court.
When they did, one of the cases fell before a Trump-appointed judge, so the administration was hopeful it would win its case, but that did not happen.
U.S. District Judge Fernando Rodriguez Jr. did not challenge the right to remove criminal illegal immigrants, but he agreed that the EAE was not the right vehicle to use, with a ruling that brought up the points I have made about this all along.
More specifically, the judge stated that for the AEA to be used, the “invasion” or “predatory incursion” must be “an organized, armed force entering the United States to engage in conduct destructive of property and human life in a specific geographical area” but that “need not be a precursor to actual war.”
On Friday, the issue finally came before the Supreme Court, and the ruling fell just as I had predicted it would, with only Justices Thomas and Alito dissenting on the majority opinion. The good news, however, is that this was not a final ruling, as the Court kicked the case back down to the 5th Circuit.
The ruling stated, "Under these circumstances, notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal, surely does not pass muster.
“But it is not optimal for this Court, far removed from the circumstances on the ground, to determine in the first instance the precise process necessary to satisfy the Constitution in this case. We remand the case to the Fifth Circuit for that purpose.”
The issue of the AEA is still up for grabs, but the Court clearly agreed that those being deported were entitled to more notice before their removal. So, there is still hope for Trump, but I doubt the Court will ever agree to allow him to use AEA to deport people during peace time.
