March 16, 2025

Mar 17, 2025

Yesterday, President Donald Trump reached back to 1798 for authority to expel five people he claims are members of a Venezuelan gang. Trump invoked the 1798 Alien Enemies Act as the legal basis for the expulsion. The Alien Enemies Act was one of four laws from 1798 that make up the so-called Alien and Sedition Acts.

Federalists in Congress passed the laws during what is known as the “Quasi-War” with France during the French Revolution, when it appeared that members of their political opposition in the U.S. were working to destabilize the U.S. government’s foreign policy of neutrality and overthrow the government so it would side with France in its struggles with Spain and Great Britain.

Their fears were not unfounded. In 1793, the year after French citizens overthrew the French monarchy, Edmond Charles Genêt arrived in the United States to serve as the French minister to the U.S. Immediately, Citizen Genêt ignored U.S. neutrality and began outfitting privateers to prey on British shipping. When the government told him to stop, he threatened to appeal to the American people. More radical French officials replaced Genêt in 1794, although he stayed in the U.S. out of concern for his safety under the new regime in France.

But his threat to appeal to Americans highlighted the growing tension between the party of George Washington and John Adams—the Federalists—and the party of Thomas Jefferson: the Democratic-Republicans (or Jeffersonian Republicans). Democratic-Republicans thought that the Federalists were moving toward monarchy, and they worked to undermine that shift by building ties with the French government to put members of their own party into office. In 1798 a private citizen, George Logan, traveled to France to negotiate with the government for policies that would strengthen the hands of the Democratic-Republicans at home.

It’s from Logan’s attempt that we got the Logan Act, which prohibits private citizens from “directly or indirectly” working with a foreign government to influence either the foreign government or the U.S. government. This is one of the laws Trump’s national security advisor Mike Flynn likely ran afoul of after the 2016 election when, as a private citizen, he talked to Russian operatives about Trump’s plans to change U.S. foreign policy once he was in office.

In addition to the Logan Act, Federalists in Congress passed the Alien and Sedition Acts, including the Alien Enemies Act. That law, which applies during wartime or when a foreign government threatens an “invasion” or “predatory incursion,” permits the president to authorize the arrest, imprisonment, or deportation of people older than 14 who come from a foreign enemy country. President James Madison used the law to arrest British nationals during the War of 1812, President Woodrow Wilson invoked it against Germans during World War I, and President Franklin Delano Roosevelt used it against Japanese, Italian, and German noncitizens.

During the 2024 presidential campaign, Trump said he would use the Alien Enemies Act to deport gang members, and in an executive order signed Friday night but released yesterday morning after news of it leaked, Trump claimed that thousands of members of the Tren de Aragua gang have “unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States.” In connection with the Venezuelan government, he said, the gang has made incursions into the U.S. with the goal of “destabilizing democratic nations in the Americas, including the United States.”

Marc Caputo of Axios reported that White House deputy chief of staff Stephen Miller and Homeland Security Secretary Kristy Noem orchestrated the weekend’s events. Caputo explained that after news of the executive order leaked, an immigration activist who tracks deportation flights posted on social media at 2:31 p.m. that “TWO HIGHLY UNUSUAL I[mmigration and] C[ustoms] E[nforcement] flights” were leaving Texas on a flight path to El Salvador.

The administration was deporting more than 200 men it claimed were members of the Tren de Aragua gang and sending them to El Salvador, where President Nayib Bukele had agreed to accept prisoners from the U.S. for “a very low fee.” Tim Sullivan and Elliot Spagat of the Associated Press report that the administration agreed to pay El Salvador $6 million to imprison about 300 men for a year.

The American Civil Liberties Union (ACLU) and Democracy Forward promptly filed a lawsuit warning that Trump would be using the Alien Enemies Act to deport Venezuelans in the country as gang members, regardless of whether there was any evidence of their gang membership and regardless of whether Venezuela is truly trying to invade the United States. The suit asked a federal court to issue a temporary restraining order to prevent the deportation of five Venezuelans in federal custody who believed they were about to be deported. At least one of the men said he wasn’t a member of the gang.

Judge James E. Boasberg, chief judge of the D.C. Circuit, issued a temporary restraining order stopping the government from deporting the five men. The administration promptly appealed, and the ACLU asked the judge to expand the order to cover all migrants who could fall under Trump’s executive order.

Ryan Goodman of Just Security put together the timeline of what came next. At 5:00 last night, Judge Boasberg asked whether deportations would happen in the next 24–48 hours. The government’s attorney said he didn’t know; the ACLU attorney said the government was moving rapidly. Before 5:22, Boasberg ordered a break so the government attorney could obtain official information before the hearing resumed at 6:00.

At 5:45, Goodman reports, another flight took off.

Before 6:52, Judge Boasberg agreed with the ACLU that the terms of the Alien Enemies Act apply only to “enemy nations,” and blocked deportations under it. Nnamdi Egwuonwu and Gary Grumbach of NBC News reported that the judge ordered the administration to return the planes in flight to the United States. “Any plane containing these folks that is going to take off, or is in the air, needs to be returned to the United States,” the judge said. “Those people need to be returned to the United States.”

Caputo reports that White House officials discussed whether to order the planes, which were then off the Yucatan Peninsula, to turn around but chose not to.

At 8:02, Goodman reports, more than an hour past the judge’s order to recall the planes, a flight arrived in El Salvador.

Last night, El Salvador’s president reposted an article explaining that a federal judge had ordered the planes to return to the U.S., adding the comment: “Oopsie… Too late,” with a laughing emoji. Secretary of State Marco Rubio reposted it.

White House Press Secretary Karoline Leavitt told Caputo, “If the Democrats want to argue in favor of turning a plane full of rapists, murderers, and gangsters back to the United States, that's a fight we are more than happy to take.” But while the administration would like to make this crisis about the alleged behavior of the men they deported, it is really about the rule of law in the United States.

As law professor Steve Vladeck explains, the administration is asserting that Trump himself can determine that the country is at war although it obviously isn’t, an assertion that Tim Balk of the New York Times notes would give Trump the power to arrest, detain, and deport all migrants over the age of 14 without due process, as he determined who is a gang member without due process. We have no evidence that the men deported were gang members, and now they have vanished.

In addition, the administration appears to have violated the orders of the court. As legal analyst Harry Litman wrote: “The table is set for the most direct showdown of Trump and the courts to date. Administration admits today that 100s of supposed gang members were deported w/ no process. chief judge of district court Jeb Boasberg had ordered them not to do it and to return any planes that had been sent.”

Legal commentator Joyce White Vance added that although there will be fights over who did what, when, the case will be headed to the Supreme Court, where Trump will hope for a decision “that says he can do these deportations regardless of other legal issues, because he is the president, and the president has the power to do whatever he deems necessary under Article II of the Constitution.” She adds:” If presidents can do whatever they want, including putting people on a plane and sending them to prisons in a foreign country with no due process whatsoever, then really, who are we?”

Trump’s erosion of the rule of law has been speeding up since he took office. On March 6 he began to target lawyers when he signed an executive order designed to put the Perkins Coie law firm, which often represents Democratic politicians and organizations, out of business. After a judge blocked his order harassing Perkins Coie, Trump followed it with attacks on the Paul, Weiss law firm, and then on Covington.

On Friday, Trump appeared at the Department of Justice, the arm of government charged with protecting the equal protection of the laws, where he said those who challenge his actions are “horrible people. They are scum.” The president of the United States identified lawyers he dislikes by name from the Department of Justice, an astonishing attempt to undermine the rule of law by endangering particular individuals who would protect it.

“We are inevitably headed,” Vance wrote, “to a confrontation between a president who has rejected the rule of law and a judge sworn to enforce it. We are in an exceedingly dangerous moment for democracy.”

In Common Sense, when he made the argument against monarchy that would drive the colonists to create their own new form of government, Thomas Paine warned his neighbors that without the rule of law, the country belongs to a king. He urged them to turn away from a world that gave one man such absolute power. “[S]o far as we approve of monarchy,” he wrote, “in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

Trump’s West Palm Beach golf club held its championship today. He posted tonight that he is proud to have won it again this year.

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Notes:

https://www.washingtonpost.com/news/the-fix/wp/2016/07/28/democrats-think-donald-trump-just-violated-the-logan-act-what-is-that/

https://www.lawfaremedia.org/article/logan-act-and-its-limits

https://history.state.gov/milestones/1784-1800/citizen-genet

https://www.archives.gov/milestone-documents/alien-and-sedition-acts

https://www.whitehouse.gov/presidential-actions/2025/03/invocation-of-the-alien-enemies-act-regarding-the-invasion-of-the-united-states-by-tren-de-aragua/

https://www.brennancenter.org/our-work/research-reports/alien-enemies-act-explained

https://www.npr.org/2025/03/16/g-s1-54154/alien-enemies-el-salvador-trump

https://www.nbcnews.com/politics/trump-administration/judge-limits-trumps-ability-deport-people-alien-enemies-act-rcna196592

https://www.axios.com/2025/03/16/trump-white-house-defy-judge-deport-venezuelans