The Deportations Were Illegal

The "Alien Enemies" act was passed in 1798, when the US was dealing with French privateers and on the verge of going to war with France. It was part of a package of bills that, among other things, changed naturalization law, made it illegal to publish "false, scandalous and malicious writing" against the government, and allowed the president to deport citizens of countries that we were at war with. The bit about sedition was weaponized by the aristocratic Federalist party as a club against the more small-government Democratic-Republicans, which apparently screwed them in the elections two years later.

The relevant part of the act:

...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. [emphasis mine]

Seems pretty clear to me. If we're at war with a foreign nation, we obviously have an interest in keeping their citizens out of our country, or at least keeping tabs on them to ensure they don't sabotage infrastructure or something. This law has only been used three times- in the war of 1812, World War 1 and World War 2. It's not clear how many people were detained and deported in 1812, and it's use in World War 1 was limited to about 6000 German immigrants¹. The most well known use was during World War 2, when the government interned about 112,000 Japanese, Italian, and German immigrants in "military facilities, gyms, jails, fair grounds and racetracks", according to the NYTimes².

The fourth time the Alien Enemies act was used was on March 15th, 2025.

On March 15th, Donald Trump issued an executive order titled "Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua"³. This order says that Tren de Aragua (a Venezuelan drug cartel) is inextricably wrapped up with the Venezualan government, and they're commiting crimes in the US and bringing drugs across the border. So, because the cartel is enmeshed in the Venezualan government, and they're doing bad stuff in the US, then they're sorta, kinda a hostile foreign governement.

[Venezuala] is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.

This is a... really impressive series of contortions, honestly. This executive order links a cartel to Venezuala (fair enough), then claims that the actions of the cartel constitute an assault on the US by Venezuala, which neatly makes Venezuala a "hostile nation or government" for the purposes of the Alien Enemies act. You might wonder why, if we're being invaded by a hostile power, we're not deploying soldiers to Venezuala. I wonder why too. Not one else seems to be asking that question, and the reason why they aren't asking it is because Venezuala isn't attacking us.

Individuals who may (we'll get to this in a bit) be associated with Tren de Aragua, are committing crimes in the US. If individuals are commiting crimes, we have procedures in place to deal with that- arrests, fines, imprisonment, and maybe deportation back to Venezuala. If a hostile nation is attacking us, we have procedures for that too- diplomatic and trade sanctions, international pressure, and war. But the administration doesn't want war with Venezuala. What they wanted was a way to avoid due process for the people they were about to send to a Salvadoran death camp.

The executive order was published at 3:53PM⁴ and an hour and a half later, the first two planes left for the CECOT prison facility in El Salvador. That afternoon around 6:48PM, Judge James Boasberg, hearing an emergency petition from the ACLU regarding five of the men detained, ordered any flights out of the country that contain deportees under the Alien Enemies act to remain grounded, and for any flights that were in the air to return. The court emailed officials and posted the order online around 7:26PM.

Ten minutes later, the last plane took off, and, in direct violation of this order, all three planes landed in El Salvador early the next morning.

The Trump administration still hasn't released detailed information about the people who were sent to El Salvador, although CBS managed to find a list of names⁵ and spent some time looking for criminal records. They found that nearly 75% of the men deported didn't have one⁶, and of the remainder, a fair number only had minor, non-violent offenses (shoplifting, trespassing etc). If these people have committed crimes that CBS couldn't find, no one in the administration has bothered to release that information. Likely because it doesn't exist.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
-- 14th Amendment of the US Constitution

The reason why we have a process for dealing with criminals is so that we don't unfairly jail or punish people who haven't committed any crimes. That process is the right of all people in the United States, citizen or not. If that process had been followed (if our laws had been followed), we wouldn't be guessing about the identities of these people and journalists wouldn't be scrutinizing public records to try to find criminal records (and we wouldn't be paying El Salvador $6 million⁷ to jail suspected Venezuelan gang members).

A month after the planes left, Trump met with Bukele (the president of El Salvador). In that meeting, he held that he couldn't return the deported Venezuelans from El Salvador, because it's up to El Salvador to do that. In the same interview, Bukele said that he couldn't return them because he didn't want to "smuggle" terrorists into the US. Let me say that again- the two men responsible for this situation sat side by side in the same room, smirking, and both claimed that the deported Venezuelans couldn't be returned to the US because the other wouldn't allow it.

So, to summarize, Donald Trump is playing semantic games with old laws in order to justify sending people from the United States to a Salvadorean gulag with no due process, ignoring multiple court orders to do so. First to turn the planes around, and then to return specific individuals from El Salvador to the United States. His excuses for disregarding those court orders are constantly changing, but boil down to "we can't, 'cause they're in El Salvador now." Which, given our vast experience with "police actions", "peacekeeping efforts", and CIA-backed revolutions, is laughable.

In that same interview, Donald Trump said that he would like to send "homegrown" criminals to El Salvador next. And I'm not betting he's particularly interested in due process for them either.