CONSTITUTIONAL INTERPRETATIONS

In his effort to deport citizens of Venezuela who may be living in the United States illegally, President Trump has invoked the Alien Enemies Act, codified at 50 U.S.C. §§ 21-24. That Act authorizes the President to deport and even imprison “alien enemies” found in the United States after he has publicly proclaimed that an “invasion” by a “foreign nation” is taking place within American borders. 50 U.S.C. §21. The Act defines “alien enemies” as any “natives, citizens, denizens, or subjects” of the “hostile nation” who are over the age of fourteen years. 50 U.S.C. §21. While the Act authorizes courts-of-law to order the deportation, and even imprisonment, of individual “enemy aliens,” 50 U.S.C. §23, it also authorizes the President to bypass the courts by issuing his own “warrant” for an individual’s arrest thereunder. 50 U.S.C. §24. Either way, the Act’s ultimate criterion for action thereunder is “public safety.” 50 U.S.C. §§21-23. The Act deems an individual “alien enemy” to pose an imminent danger to “public safety,” sufficient to require his or her immediate deportation, only when he or she has demonstrated “actual hostility . . . against the public safety,” or has otherwise committed a “crime against the public safety.” 50 U.S.C. §22.

In connection with his effort to fly several dozen, previously arrested Venezuelan nationals out of the United States into a Salvadoran prison, President Trump has claimed, via Attorney General Pam Bondi, that America’s federal courts have no say in his effort to execute the Alien Enemies Act in the manner he wants. Both the President and the Attorney General are dangerously wrong.

The Alien Enemies Act was passed by Congress, and signed by President John Adams, in 1798. At the time, many people in the United States feared that France might soon start a ground war against the United States. In that context, Congress intended the Act to protect the American public from the consequences of a ground war initiated by a foreign country. In another significant and historical context, the people of the United States had recently adopted the original Constitution of the United States, in 1788, and its first ten amendments in 1789. In that context, Congress clearly intended the Alien Enemies Act to comply with the federal Constitution, as that document was written, in 1798.

Judging from both of those contexts, and its language, the Act clearly calls for the active involvement of federal courts in any deportations of “enemy aliens,” including forced deportations that are ordered by the President. To begin with, the Act specifically and explicitly requires that the United States Marshal for the judicial district in which the “warrant” is to be executed “have” the “warrant” in his or her possession. 50 U.S.C. §24. The Marshal is an officer of the court, and is required by law to “obey” the court’s orders. See 28 U.S.C. §566. Next, federal courts, like all common law courts in England and the United States, are authorized by the Constitution, and by federal statute, see U.S. Const., Art. I, §9, second clause, and 28 U.S.C. §1651, to issue writs of “habeas corpus.” Those “writs” require officials who have arrested a suspected criminal to bring that before the court to allow the court to question and test the legality of the arrest. See U.S. Const., Art. I, §9, second clause. The Alien Enemies Act does not attempt to “suspend” the arrested person’s “privilege” to have the “Writ of Habeas Corpus.” See U.S. Const., Art. I, §9, second clause. Finally, the Fourth Amendment to the United States Constitution, enacted in 1789, provided, and still provides, as follows:

[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing . . . the persons . . . to be seized.

U.S. Constitution, Amendment IV.

Accordingly, federal courts not only have the power, but they also have the duty under the Constitution to question and test the legality of “warrants,” even those that are issued by the President. Without “warrant” requirements like this, all of us, and not just alleged Venezuelan gang members, have reason to fear the apocryphal midnight-knock on the door by the secret police.