The problem with President Trump is not so much what he’s doing, but the way he’s doing it.
He tends to charge around like a bull in a china shop, focused on quick action instead of making sure his administration’s decisions will stand up to the scrutiny of the judiciary.
The deportation of 300 alleged Venezuelan gang members to El Salvador is one example. Trump knew that nobody wants these people in the United States. So his administration sent them to a Central American prison with great fanfare — but without regard for what the law requires.
Stephen Miller, a Trump advisor who is hard-core anti-immigration, literally screamed during one TV interview about the deportations that critics should read the law.
So we did. The Alien Enemies Act of 1798 is available online, and a close reading of it (admittedly by a newspaper editor who is not an immigration lawyer) produces obvious questions about what the administration did:
• The act cannot be used unless the United States is at war with a foreign country or government, or unless “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States.”
Trump invoked the Alien Enemies Act by claiming the Tren de Aragua gang is conducting “irregular warfare” against the United States at the direction of the Venezuelan government. That sounds like a stretch to meet the war requirement, but if it’s true, the Justice Department should present the evidence.
• More important, the act clearly says it shall be the duty of the federal courts to hold a “full examination and hearing” on the allegations of anyone being removed from the country.
There’s no way this was done for the suspected gangsters flown out last weekend, since the president didn’t sign the proclamation to use the Alien Enemies Act until March 14, and the first court hearing was a day later, when many of those being deported had already left.
The court hearing only occurred because the ACLU and another organization had filed a lawsuit on behalf of the illegal immigrants. But they didn’t know Trump had issued the proclamation to remove their clients. That’s the signal that the administration intended to get these guys out of the country no matter what the Alien Enemies Act said about court hearings.
Justice Department attorneys said a judge’s order not to use the Alien Enemies Act to deport suspected gang members was a massive, unauthorized imposition on the executive branch’s authority. It doesn’t take a lawyer to provide the Marbury vs. Madison response: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
Trump’s inclination is to push as hard as he can to get something and hope that nobody pushes back. Maybe that worked in the Manhattan real estate business, but ultimately it’s going to be a far less successful strategy in the White House. Somebody with money and attorneys will oppose almost everything any president tries to do. Think of the Republican opposition to the Affordable Care Act and to President Biden’s efforts to reduce student loan debts.
The concern is that the secrecy and stubbornness displayed in the Alien Enemies Act case will evolve into refusals to obey court orders. That is the trap that the president must discipline his administration to avoid.
He may think the U.S. Supreme Court will give him a favorable hearing in such cases because he appointed three of the justices in his first term and six of the nine justices were appointed by Republican presidents.
But two of Trump’s appointments, Brett Kavanaugh and Amy Coney Barrett, have shown a willingness to set aside the party playbook when the facts of a case do not fit the claims. Chief Justice John Roberts also is flexible in this manner.
It is difficult to envision this Supreme Court allowing Trump to dodge the Constitution’s explicit and repeated separation of powers. There are three equal branches of American government, and Trump should recognize this now so he doesn’t have it force-fed to him later. He is right to send foreign gang members out of the country, but he has to do it the right way.
