President Donald Trump’s invocation of the Alien Enemies Act has raised all sorts of legal issues. One of the big ones is due process, which the Supreme Court needed to remind the Trump administration to obey while attempting to deport people under the 1798 law that was previously invoked only during wars.
New reporting raises another issue: the Fourth Amendment’s warrant requirement. USA Today reported on a memo issued March 14 by Attorney General Pam Bondi that said law enforcement can pursue people in their homes without warrants.
According to USA Today:
The memo was provided to USA TODAY by the open government group, Property of the People, which they obtained through a records request. … [The memo] purports to grant authority for police to enter a suspected “Alien Enemy’s residence” if “circumstances render it impracticable” to first obtain a warrant. The memo told law enforcement that immigrants deemed “Alien Enemies” are “not entitled to a hearing, appeal or judicial review.” Representatives from the Department of Homeland Security referred USA TODAY’s questions about the memo to the Department of Justice. DOJ did not respond to requests for comment.
To be sure, there are exceptions to the Fourth Amendment’s warrant requirement, such as in what the law calls exigent circumstances (emergencies, basically). But there’s no exception magically created by the president’s invocation of this law to summarily deport alleged gang members.
This Fourth Amendment problem is one of several discrete legal issues that all stem from a bigger one: the invocation of the law itself. Courts have handled preliminary litigation over it but have not yet resolved the underlying legality of Trump’s claimed authority, which is unprecedented in these circumstances. If the Supreme Court ultimately rejects his authority on this score, then that could simultaneously address the myriad discrete issues that have arisen. But even if Trump’s authority is upheld under the act, the Fourth Amendment still can’t be sacrificed in the process. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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