Trump relies on 18th-century law to expel terrorist gang members

Over the last week, the Trump Administration showed that it's willing to use every tool possible to advance its goals of deporting illegal aliens and ensuring national security and public safety. The actions have launched a face-off between the administration and the judicial branch.

Last Saturday, Pres. Trump invoked the Alien Enemies Act, passed by Congress in 1798, so the administration could expeditiously remove illegal alien members of the foreign terrorist-designated gang Tren de Aragua. By invoking the Alien Enemies Act, the Trump Administration argues that it can remove these terrorist gang members, since Pres. Trump has declared their entry into the United States a predatory incursion at the instigation of Venezuelan dictator Maduro. 

The 1798 law says:

"Whenever ... any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies."

Shortly after invoking the Alien Enemies Act, the Trump Administration sent two planes, partially filled with foreign terrorist gang members, to El Salvador where Pres. Nayib Bukele had already agreed to house the aliens, along with a handful of MS-13 gang leaders. With the planes over international waters, D.C. Federal District Judge James Boasberg issued a temporary injunction against Pres. Trump's use of the Alien Enemies Act and verbally ordered that the planes return to the United States. The Trump Administration instead followed the judge's written order, which did not require the plane’s return. The administration further argued that the planes were already over international waters when the judge issued his demand.

The Alien Enemies Act has only been invoked three times in U.S. history, and Congress had formally declared war each time. This is the first time it's been invoked after the president proclaimed an invasion or predatory incursion.

Also this week, Secretary of State Rubio relied on another section of rarely used federal law to pursue the visa revocation and deportation of a green card holder. Immigration and Customs Enforcement detained Mahmoud Khalil, an activist who Secretary Rubio says supports the terrorist organization Hamas and helped lead the riots and seizure of several academic buildings at Columbia University in New York City.

Federal law allows the Secretary of State to remove any non-U.S. citizen if his or her continued presence "would have serious adverse foreign policy consequences for the United States." Rubio is using this authority as grounds for Khalil's removal.

Khalil is being detained in Louisiana and will soon face formal removal proceedings in New Jersey.

Immigration News

The Alien Enemies Act Removal Saga

A timeline of the legal wrangling and deportation flights after Trump invoked the Alien Enemies Act
Last week ended with a bang. President Trump issued a proclamation invoking the Alien Enemies Act and began deporting illegal aliens with alleged ties to the vicious Venezuelan gang Tren de Aragua (TdA), a foreign terrorist-designated organization, to El Salvador. During the flights, the ACLU got a Federal District Court Judge, James Boasberg, to issue an injunction and order the flights to turn around and come back, but the flights in question appear to have left American airspace by then. Judge Boasberg is demanding answers, the Trump Administration is arguing that the judge overstepped his authority, and the legal process continues. This article by AP helps to cut through some of the noise with a timeline of this story. 

Gang tattoos and hand signs: How ICE identified Venezuelan gang members to deport as terrorists
One question we frequently hear is, “How did ICE know these aliens were in a gang?” This article by Stephen Dinan at the Washington Times explains some of the techniques ICE employs to identify gang affiliation. 

Trump Using Every Tool Available to Keep Immigration Promises
If you want to explore the powers the President has to enforce immigration law, check out this informative article from our friend Art Arthur at the Center for Immigration Studies. The final section specifically addresses Alien Enemies Act.

It’s absolutely legal to deport hate-monger Mahmoud Khalil
While the terrorist gang flights have taken up much of the immigration news space of the week, additional stories of specific aliens being removed are still being pushed by open-border advocates. These stories will likely become more common as opponents of immigration enforcement continue to dig up the most sympathetic stories they can find to discredit all immigration enforcement. On the other hand, these cases provide an excellent opportunity to dig into what rights aliens have and what existing immigration law says. This article in the New York Times by George Fishman of the Center for Immigration Studies digs into the case of the green card holder from Columbia University.

New York state’s top court blocks New York City law to allow noncitizen voting
Some good news came out of New York’s highest court yesterday, as New York City’s 2022 law allowing noncitizens to vote in NYC elections was struck down 6-1 for violating the state constitution. In Washington, D.C., the House is preparing to vote on the SAVE Act, which would help guarantee that only citizens vote in Federal elections by requiring proof of citizenship to register to vote.

Draft List for New Travel Ban Proposes Trump Target 43 Countries
Late last week, the New York Times obtained a draft executive order proposing travel bans or visa restrictions on 43 countries. The President has broad authority under 212(f) of the Immigration and Nationality Act to restrict the entry of “any alien or class of aliens” by proclamation, and the power has been used 90 times since 1981. President Biden alone used the power 16 times, as of February last year. While no official order has been released, the media reports that it could come as early as today.

Next Week

Both the House and Senate return from their week-long recess. Both chambers are expected to continue their negotiations on budget reconciliation.