Court Says Trump Can’t Use 18th-Century Law To Deport Venezuelan Immigrants

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Hey there, it's the NPR Politics Podcast.

I'm Sarah McCammon.

I cover politics.

I'm Jimana Bustillo and I cover immigration policy.

And I'm Franco Ordonez.

I cover the White House.

Today on the podcast, a court has ruled that the Trump administration cannot use the Alien Enemies Act as a justification to deport Venezuelan immigrants.

But let's back up for a second.

Franco, just remind us, if you would, what President Trump was trying to do when he invoked this act.

I mean, it's basically a key part of his effort to carry out his promise of a mass deportation program that he talked about since his campaign.

It's basically an 18th century wartime law, very obscure, called the Alien Enemies Act, to quickly deport large group of Venezuelans without regular due process.

It's actually a law that was used to justify the incarceration of Japanese Americans as well as Italian and German immigrants in World War II.

And now Trump is trying to use it to target Venezuelan streetcram called Trende Aragua.

He claims that the gang is actually doing this irregular warfare in the United States at the direction of the Maduro regime, which of course is the government of Venezuelan President Nicolas Maduro.

But

that claim of an invasion has actually been pushed back by the courts.

Yeah, we've talked a lot about this broader immigration crackdown, but the invocation of this law is specifically focused on this Venezuelan gang.

Yes.

And so practically speaking, what that has looked like is right after he invoked the Agilian Enemies Act, we saw about three planes leave the United States that carried over 200 men,

majority of those being deported through the use of the Alien Enemies Act.

They're from Venezuela, but they were instead sent to El Salvador, a notorious prison known as Sekot,

where they remained for several weeks until a prisoner swap that recently occurred.

But we have seen the Trump administration use the Alien Enemies Act to swiftly deport people.

Why would the Trump administration want to use this act for immigration enforcement rather than going through a more traditional means of enforcing immigration law?

The deportation process can be really slow, especially for people who have been in the country for more than two years and are not necessarily encountered at the border.

It can just take years for someone to have their case moved through immigration court.

And so the Alien Enemies Act actually allows for a streamlined process where you don't necessarily have a right to have your case heard in immigration court and you can be swiftly removed from the United States.

And so this ruling on Tuesday from a Fifth Circuit panel, what did the court say?

A panel in the Fifth Circuit decided to block the Trump administration from using the Alien Enemies Act in order to deport Venezuelans within its jurisdiction.

So this is now effective in Texas, Mississippi, and Louisiana.

And effectively, that means that the Trump administration cannot use that act as the basis basis for removing someone from the country.

This is a really big deal, in part because it is bringing into question whether or not the use of this act for domestic immigration enforcement in this way is even legal at all.

So the court said no.

I assume the administration is likely to appeal that.

If the Supreme Court ultimately weighs in here in Trump's favor, what could that mean?

I mean, that would be huge.

I mean, it would be a gigantic step.

And let's remember that the Supreme Court did already rule in favor of the Trump administration on a piece of this, allowing it to continue soon after the administration invoked this proclamation.

But if the Supreme Court is able to do this, it would essentially allow the administration to do this for other groups.

Once you designate one group as part of the Alien Enemy Highs Act, there's no question that the Trump administration can do this with others.

And the Trump administration has made that very clear that he is likely to do that, considering the number of groups that he has claimed are invading the United States.

I mean, this is a fight that the president, I would argue, that the president wants to have.

They want to go at the Supreme Court.

He wants this in the Supreme Court, and he has the most favorable Supreme Court that President Trump could hope for over the last few decades, considering three of the justices are ones that he appointed.

The question of the use of the Alien Enemies Act has floated its way up to the Supreme Court a few other times, but they have not ruled directly on the question of if the Trump administration can use the Alien Enemies Act in this way.

They've issued other decisions, mostly related to how much notice someone was given before they were deported from the country or removed from the country through the use of the Alien Enemies Act, but they've completely stayed away from the issue of the use of the act and its merits.

Right.

They've weighed in on these kind of technicalities, smaller issues, but not so much on the fundamental question.

Totally.

You know, what do you make of the administration's tactics here?

I mean, using emergency declarations is something the administration has done in other areas since Trump was re-elected.

What's the objective?

I mean, I think it's about speed and it's about, you know, knocking something out with as big of a hammer as possible.

President Trump has used this, you know, emergency declaration for so many issues.

He's declared an emergency on the border in order to send the military to the border to help with border enforcement.

He has declared an emergency in Los Angeles to send the National Guard there to quell protests about immigration.

He's also, you know, used these emergency powers to bring the National Guard here to Washington, D.C.

And he's also threatening to use the National Guard in Chicago.

under those same type of powers.

So this is something that the administration does very frequently.

And that's also one of the reasons why this decision in the Supreme Court is going to be so important because it could have implications on far-reaching implications, particularly on immigration in other areas, but extending that to question how much authority does this executive branch have, because there's no question that Trump has tried to stretch his executive powers in so many ways, but none other like immigration, especially on immigration.

All right, it's time for a quick break.

We'll have more in just a moment.

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And we're back.

Jimenez, you've reported that the administration is calling up military lawyers, these are the people known as JAGS, to help with immigration court proceedings.

What's happening there?

So, over the past few months, we have seen over 100 immigration judges.

These are administrative judges that work under the Department of Justice in the Executive Office for Immigration Review.

This is what houses immigration courts.

About 100 of them have either resigned voluntarily or been fired as a part of a broader effort to reduce the size of the federal government.

What we have recently heard is that the Pentagon has approved 600 military lawyers to be authorized to work for the DOJ and that EOIR department as temporary immigration judges, with about 150 of them starting as soon as the pressure.

as this week.

So it definitely seems like this is an effort to replace the number of judges that have since, over the course of the start of this administration, been removed.

So the administration has been getting rid of immigration judges.

They're replacing them with lawyers from a totally different department, right, defense, JAG lawyers.

Do you have a sense of why the original immigration judges were fired, those who were let go?

It's really tough to find patterns.

You know, I've spoken a lot with the union that represents immigration judges.

I've been speaking with a lot of former immigration judges myself.

And there isn't necessarily a clear-cut pattern of it's only individuals that used to be immigration attorneys.

You know, we have seen veterans be dismissed from the department.

We have seen former DHS prosecutors from varying administrations be dismissed from the department.

Judges with varying levels of denial for asylum have been dismissed by the department, varying levels of experience.

Some people buy asylum a lot and some who don't.

Definitely.

And so there hasn't been a clear-cut pattern.

But what is completely new and in a way unprecedented is bringing on, as you mentioned, this third agency adjudicators into these roles.

And the position is temporary, I think, is particularly important.

So I received an email that was sent to those who are Navy JAGs, and it only asked for them to volunteer for 176 days, which is a really short detail.

And, you know, immigration law is really complicated.

They're going to be coming in for a short amount of time.

They have no experience in this.

So there's a lot of questions about how they're supposed to fulfill these roles.

Aaron Powell, what's the White House trying to achieve here, Franco?

You know, just speaking about the potential reasons for cutting all these people, I mean, this administration has taken a very much of a slash and burn approach

to taking out the federal workforce and replacing them with individuals who are more in line with the president's agenda and under the president's direction.

I mean, these are jag lawyers who are under the purview of the administration.

There's going to be a lot of pressure on them from the DOJ, from the Attorney General, to kind of carry out

the agenda or the objectives of the President of the United States.

And we all know what those are when it comes to immigration.

It's to speed up deportations.

And a big part of this, I think, is it is another example of the use of the military on immigration enforcement.

I mean, we're seeing that over and over again.

And President Trump has made very clear that he wants to use the military in more examples like this.

I mean, presumably, Jimena, these judges coming in, JAGS or otherwise, are going to know the history here.

They're going to know that they're, in many cases, replacing judges who were let go.

Where does that leave them in terms of the ability to

make decisions with a certain level of independence?

Aaron Ross Powell, Jr.: Experts have told me that the reason that immigration courts are in the Justice Department and not in the Homeland Security Department is to at least create a separation of influence so that the enforcers or like the police and the folks that are doing the arrests and the detention are not working under the exact same direction as the ones who are supposed to be fairly adjudicating and weighing cases that may align with the Department of Homeland Security's goals may not.

And what we're seeing right now is those lines are getting really blurred.

Obviously, both departments are under the executive branch, ultimately the president, but

we're seeing a continued blurred line between the roles of immigration judges and the enforcers coming out of the Department of Homeland Security, or as Franco explained, like other security forces such as the military, which have been really involved in assisting DHS personnel and officers as they're carrying out this enforcement.

I just want to echo that I kind of find it's more than just blurring the lines of independence between, you know, the executive branch and the Justice Department.

I mean, President Trump has taken so many steps to kind of just almost not quite erase them, but very much kind of clear so much of that wall away.

I mean, Pam Bondi, the Attorney General, is very much right there doing what the President is seeking, following within that agenda.

And I think that is very clear.

And I think this is in line with that shift in the direction of this Department of Justice, which is very different than past historical ones.

We've talked about the administration's willingness to invoke emergency powers.

We've talked about the need for speed and the desire to move this process along, the deportation and enforcement process.

What else does this latest move, bringing in these JAG lawyers to serve as immigration judges, what else does it tell us about the larger picture here and where the administration may be headed with its enforcement strategy?

I think the main focus is enforcement.

It's not necessarily adjudicating through due process these cases to make sure that each individual person gets a chance to argue why they should get to stay in the United States, as has been practiced for decades.

The focus here is on arrests, on detention, and on removing those people as quickly as possible.

We are seeing that there is a nearly 4 million case backlog in immigration courts, Bringing in immigration lawyers on a temporary basis to essentially create a giant influx in the amount of people that can review cases will allow for more cases to be reviewed.

But immigration advocates tell me that they might not be reviewed appropriately.

They might be quickly dismissed.

It's just simply going to continue to streamline people's deportation cases.

And that's separate of everything else we've been seeing with arrests in courts, additional personnel and security personnel, as Franco has talked about, in various major cities.

You know, what we are really just seeing is a really large security and law enforcement presence.

And that is the show that this administration wants to put on and is fulfilling by doing this.

Yeah, I mean, I think it's on the one hand, it's about deporting as many people and as quickly as possible.

On the other hand, I think the big picture issue is this is about executive power.

And another example, again, of using the different levers that this administration is using, using the military to do immigration enforcement, and executing powers that past presidents haven't done or doing it in a new way, in a much more forceful way, much like we have been seeing this president do on so many other issues.

All right, we'll leave it there for today.

I'm Sarah McCammon.

I cover politics.

I'm Jimena Bustillo, and I cover immigration policy.

And I'm Frank Ordoñas.

I cover the White House.

And thank you for listening to the NPR Politics Podcast.

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