Blurring the distinction between substance and process is a tactic of disinformation. The Trump administration is using the technique in its efforts to deport immigrants under the Alien Enemies Act, but the courts are seeing through it.
On Wednesday, an appeals court upheld an order to block President Donald Trump’s administration from using the 1798 statute to deport people it says are members of a violent Venezuelan gang known as Tren De Aragua.
The administration knows that most Americans support the removal of transnational criminal members of a gang it recently designated a foreign terrorist organization.
The substance of Trump’s policy has broad appeal. The administration knows that most Americans support the removal of transnational criminal members of a gang it recently designated a foreign terrorist organization. And Trump frequently invokes his strong “mandate” to engage in aggressive immigration enforcement, which was a major theme of his campaign.
When district court Judge James Boasberg issued a temporary restraining order blocking the deportations on March 15, Attorney General Pam Bondi blasted the judge for “supporting the Tren de Aragua terrorists over the safety of Americans.” In fact, Judge Boasberg is not “supporting” either party. He is supporting the law. The legal problem isn’t with what the administration is doing; it is how the administration is doing it.
In a 2-1 decision Wednesday, the Court of Appeals for the District of Columbia also ruled against the administration, rejecting an emergency motion to overturn District Court Boasberg’s decision to stop the program temporarily. Two judges, one appointed by a Republican president and one by a Democrat, wrote concurring opinions noting problems with the application of the statute and the apparent denial of due process.
In her concurring opinion, Judge Karen L. Henderson explained that the Alien Enemies Act applies only in wartime. At the moment, of course, the United States is not at war. As Judge Henderson wrote, the Alien Enemies Act was enacted during a time when “our fledging nation was consumed with fear” of a war with France and “internal strife from her sympathizers.” As a result, Congress passed a package of bills known as the Alien and Sedition Acts.
The Alien Enemies Act would permit the president to expel “enemies” during times of war. The problem with using that statute now, of course, is that none of those conditions are currently being met. A counterpart to the statute known as the Alien Friends Act was passed for use in times of peace. That statute permitted the removal of any immigrant the president deemed “dangerous to the peace and safety of the United States.” Why, you might ask, did the Trump administration not simply use the Alien Friends Act to deport this group? That’s because, as the court noted, the statute was immediately seen as unconstitutional and allowed to lapse in 1800.
But that’s where the how becomes a problem. As Judge Henderson explained, the language of the Alien Enemies Act requires a “declared war between the United States and any foreign nation or government” or “an invasion or predatory incursion … against the territory of the United States by any foreign nation of government.” Happily, we are not at war, which, under the Constitution, may be declared only by Congress. Nor have we experienced any “invasion” or “predatory incursion” by a foreign nation or government.
Despite the government’s argument that unwanted migrants who cross the border unlawfully have “invaded” our country, the court said that those terms as used in the statute instead must be considered in their “military sense.” Indeed, the court noted that James Madison had called the statute “an exercise of the power of war.” The court concluded that the words “invasion” and “predatory incursion” in the statute must be read to mean a “hostile encroachment by a nation state.” Because these conditions do not exist, the plaintiffs in this case have shown a substantial likelihood of succeeding on the merits of their lawsuit against the administration. In another concurring opinion, Judge Patricia Millet explained her concerns with how the administration is deporting the plaintiffs, noting the apparent denial of due process. In another concurring opinion, Judge Patricia Millet explained her concerns with how the administration is deporting the plaintiffs, noting the apparent denial of due process. The Fifth Amendment to the Constitution guarantees due process to anyone within the territorial jurisdiction of the United States before they can be denied life, liberty or property. Courts have long held that due process rights apply to immigrants, legal or not, in deportation proceedings. The basic requirements of due process are fair notice, an opportunity to be heard and an impartial decision-maker. The individuals in this case received none of these procedural safeguards to determine whether they are, in fact, noncitizens who are members of Tren de Aragua. The judge noted that some of the men were designated as gang members based on tattoos matching those found in a Google search. The case now goes back to Judge Boasberg’s courtroom for further proceedings, including the court’s order that the government show that it did not violate his initial order to halt the departure of planes and their return, as well as its refusal to answer his questions about those issues. The Trump administration no doubt handpicked members of a transnational criminal gang to test the waters for aggressive immigration enforcement, gambling that most members of the public would be happy to see them go. But by focusing only on the substantive goal of ridding our country of individuals it deems dangerous criminals, the administration steamrolls over the lawful process that protects any of us from getting ensnared in a net by mistake or abuse. Under the law, sound process is required to yield effective substance.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
