It’s a grim sign of the times that Old Joe Biden’s regime can open the door to millions upon millions of illegal migrants without a peep from the courts, but as soon as President Donald Trump tries to remove them, our self-anointed moral superiors in the judiciary burn the midnight oil to come up with pretexts to stop him. Trump has been trying to use the 1798 Alien Enemies Act as the legal foundation to remove Venezuelan gang members, but several courts, including the Supreme Court, have stymied him. Now, the final showdown has begun in the 5th U.S. Circuit Court of Appeals.
The Alien Enemies Act of 1798 states that “whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.”
This law has the admirable directness and simplicity that was characteristic of statute-making in an earlier, less complicated age. The extract above continues for a lengthy paragraph, and then the Act goes on for a couple more, but that’s it. If a similar law were drafted in 2025, it would be 700 pages long.
The Alien Enemies Act has been the law of the land for 227 years, even if it has been ignored from time to time. The Trump administration contends that the Act allows today for the deportation of members of the lethal Tren de Aragua gang, which constitutes a “hybrid criminal state.” Trump issued an executive order on March 15 stating that Tren de Aragua was “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” That certainly seems to be the case. Tren de Aragua members didn’t come into the country hoping to get jobs and become “Maryland dads.” They came here to traffic in drugs and engage in other crimes. If that isn’t a “predatory incursion,” what is?
Predictably, leftist advocacy groups that always side against the best interests of the American people took issue with the administration’s efforts. ACLU attorney Lee Gelernt said of the Alien Enemies Act: “This has been invoked three times only in major, major wars. The government is now suggesting you can invoke it with a gang.” In mid-May, the Supreme Court, with Justices Clarence Thomas and Samuel Alito dissenting, agreed and blocked Trump from invoking the act. The block, however, was only temporary: The high court sent the case back to the 5th Circuit Court of Appeals, and on Monday, the appeals court began to hear arguments.
Gelernt argued before the appeals court Monday that the Alien Enemies Act “was solely about war and serious military conflict at a size where we would respond with our military, and no one’s suggesting that the military has or would respond here.” One of the judges, however, was more interested in procedural and jurisdictional issues, and asked Gelernt: “Can you give me a Supreme Court case where the Supreme Court has said you can, as a federal court, countermand the president of the United States in his determination that we’re in an armed conflict?”
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Gelernt responded that he couldn’t come up with a case of that kind, but that the Alien Enemies Act could only be invoked in the middle of a military conflict, and “the government itself is not claiming there’s a military conflict.” In response, Deputy Assistant Attorney General Drew Ensign echoed the questioning judge, stating that the court simply didn’t have the authority to second-guess the president if he determined that invocation of the act was appropriate.
None of this, however, goes to the heart of the controversy. The real issue here is that leftists want illegal migrants, including criminal gang members, to stay in the country. They can be counted on to vote Democrat, and the more crimes they commit, the more people become threatened and start thinking more warmly about the authoritarian government that every leftist dreams of imposing. Patriots want the criminal migrants out. The showdown in the 5th Circuit Court of Appeals has begun.
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