What Is The Alien Enemies Act?
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Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Kimena Bustillo, and I cover immigration policy. And I'm Mara Liason, senior national political correspondent. And today on the show, we're going to look at the Alien Enemies Act. That's the provision the White House invoked this weekend when it deported hundreds of people it alleges to be Venezuelan gang members. They were flown to El Salvador. Those deportations are

have been challenged in court. Ximena, give us the background here. What is this authority that the president has invoked?

So the Alien Enemies Act of 1798 is a rarely used law that gives the president authority to detain or deport nationals of an enemy nation, particularly during wartime. This is only the fourth time in American history a president has used the act and the first since World War II.

The law requires war to be formally declared, which Congress only really has the authority to do. And the president was asked about this on Air Force One over the weekend. The reporter said this has previously only been used at times of war. Well, this is a time of war because Biden allowed millions of people, many of them criminals, many of them at the highest level. They emptied jails out. Other nations emptied their jails into the United States. That's an invasion.

And these are criminals, many, many criminals. Murderers, drug dealers at the highest level, drug lords, people from mental institutions. That's an invasion.

They invaded our country. So this isn't, in that sense, this is war. So President Trump is saying the U.S. is at war. There was a lawsuit, as we mentioned, and a judge, Jimena, ruled in a preliminary manner saying that the planes needed to be turned around. Is that right? Right. There were a few different things that happened there.

in between each other yesterday. So there was a preemptive lawsuit that was filed in Washington, D.C., in federal court blocking the deportation of five men under this act. Trump had not yet invoked it, but this was preemptive. He's been talking about doing it. There were a lot of media reports that he was going to do it. And so some immigration rights groups filed a preemptive lawsuit.

The judge blocked the use of the act on these five men and then later in the evening blocked the use of the act on anyone for about two weeks. So 14-day stay on the use of Alien Enemies Act for deportations. However, in between that legal process, the act was invoked and

Over 200 people were sent from the United States to El Salvador under the act. And the question is whether...

the administration was flaunting a judge's order. Caroline Levitt, the press secretary, put out a tweet saying, quote, The administration did not refuse to comply with a court order. The order, which had no lawful basis, was issued after terrorist TDA aliens had already been removed from U.S. territory. The written order and the administration's actions do not conflict.

And that's a reference to the Tren de Aragua Venezuelan gang that the administration has been really focused on even since the Trump campaign. To me, the three most important words in that is no lawful basis. The courts get to decide what's a lawful basis.

And it's one thing to say it doesn't really apply to us. Planes were in the air. But it's another thing to say no lawful basis. And we're now got two branches of government who are vying to see who gets to decide what's legal and what's not. Traditionally, and the way the founders designed it, it's supposed to be the judiciary. But more and more and more, the White House is pushing back against the judicial branch.

And the Trump administration is across the board doubling down on this, saying that the planes were already in the air, even though the judge did

specifically say to turn the planes around. Border Czar Tom Homan was talking on Fox News and also doubled down on the administration's plans to keep moving forward. Every day, the men and women of ICE are going to be in the neighborhoods of this nation arresting criminal, illegal, alien, public safety threats and national security threats. Lawrence, you're not going to stop us. And we're going to make this country safe again. I'm proud to be a part of this administration. We're not stopping. I don't care what the judges think. I don't care what the left thinks.

We're coming. Caroline Leavitt also tweeted out a video of these people who had been deported on a tarmac in El Salvador. And she says, quote, the American people voted for this. And my...

And Mara, is this in essence the White House keeping its promises? There's no doubt that a lot of the things he's doing on the surface, they have to do with immigration or he's getting rid of DEI or things that are basically unpopular. And you could argue that that's what he ran on. That's what people voted for. Did people vote for the White House to defy the judicial branch?

That's something that most voters don't think about at all. But I think the answer would be no. OK, we're going to take a quick break and we'll be back in a moment.

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And we're back. And Jimena, the president already has broad jurisdiction when it comes to immigration policy. And if the people being deported are in fact members of a criminal enterprise or are in the United States illegally, then why does this act need to even be invoked?

So Trump has for a long time acknowledged that this specific law gives him, quote, tremendous authority when it comes to immigration law enforcement. That is because detentions and deportations that go through the act do not go through the regular immigration court system. And so that allows Trump to bypass the traditional deportation process that can take weeks, months and even years.

Yeah, I mean, I think that Mara, the important word there is due process.

Right. I mean, these are, you know, taken as a whole. All of these things kind of change the way that the laws are applied in this country. I mean, there are loopholes everywhere. And it's one thing to kind of –

take advantage of one or two of them, like a law that hasn't been used more than four times since 17-something. But when it's taken all together, it's a pretty big assault on the rule of law. Well, and Mara, we were talking about this before, but like,

Trump 1.0 and Trump 2.0 are different. President Trump did not invoke the Alien Enemies Act during his first administration. And we're now like two months in. Yeah, he has people around him now that have been thinking about this for a long time. This didn't just start with Donald Trump. There's a big part of the conservative movement that felt that the executive should be much more powerful. He should have fewer checks and balances and restraints on his ability to do what he wants.

And now they have a plan and they've spent a lot of time figuring out how they could enact this. And the courts are going to have the final say on a lot of this. Whether after they have the final say their rulings will be followed is a completely different thing. You heard Tom Homan say earlier, I don't care what judges think. And you've seen Elon Musk call for the impeachment of judges. Anybody who rules against Donald Trump should be impeached. And

And I don't really know what the courts are going to do. They cannot enforce their rulings. They don't have a militia that works for them. There are the U.S. Marshals, but they're under the control of Pam Bondi, the attorney general. Yeah, Mara, this makes me think of something else that the president said on Air Force One over the weekend. He was being asked about a ruling that said that the administration had to rehire probationary employees who had been cut.

And the president's response got at something about how he views the judiciary right now. It's a judge that's putting himself in the position of the president of the United States who was elected by close to 80 million votes.

And you have that. You're having more and more of that. It's a very dangerous thing for our country. There you have it. You know, he says the judge is putting himself in the place of the president. And remember, he posted not long ago, quote, he who saves his country does not violate any law. And I think that pretty much sums up President Trump's view of the separation of powers and the powers he thinks the executive should have.

But he believes that he should be unfettered and judges should not be pushing back on anything that he wants to do. And that is a completely different form of government than the one that the framers designed, which was based on broadly distributed power, three co-equal branches. And one of the branches, the judiciary, gets to decide whether laws are constitutional or actions taken by the executive or the legislative branch are constitutional. Havana, back to you.

Back to this immigration question. What are you watching for? What comes next?

Well, the legal process is still playing out as it always does. Watching for court hearings, watching for additional filings. There's going to be another hearing later today where we're going to see whether or not those flights were lawfully taken off ground or not. And then eventually whether or not Trump can use this act to deport more people. There's currently a stay on that, but that won't be forever.

And for the people who have already been taken to El Salvador, these legal proceedings to come are going to have no impact on them. They are already in the hands of another government. They are already out of the United States control. All right. Well, we're going to leave it there for today. I'm Tamara Keith. I cover the White House. I'm Ximena Bustillo, and I cover immigration policy. And I'm Mara Liason, senior national political correspondent.

And thank you for listening to the NPR Politics Podcast.

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