The Divide on the Right Over the Alien Enemies Act

Since the Trump administration deported more than 200 people under the Alien Enemies Act without due process to a brutal El Salvadoran prison on the grounds that they were members of a Venezuelan gang, a number of horror stories have trickled out, alleging people unaffiliated with the gang are among the imprisoned.

For example, a Venezuelan professional soccer player named Jerce Reyes Barrios was among the deportees. He came to the U.S. seeking asylum last year after he was tortured for protesting Venezuelan dictator Nicolás Maduro, according to Barrios’ attorney. Barrios was placed in maximum security detention during the Biden administration, his attorney said in a sworn statement, because federal agents had mistaken a soccer tattoo for a gang tattoo and had mistaken a photo of him making a “rock on” hand gesture to be a gang sign. A makeup artist named Andry who sought asylum in the U.S. was similarly detained by Immigration and Customs Enforcement during the Biden administration due to what his attorney describes as a benign tattoo.

In response to both allegations, Department of Homeland Security (DHS) spokeswoman Tricia McLaughlin wrote on X that DHS had more evidence of gang affiliation than what was publicly available and that social media posts by Barrios and Andry indicated they were members of Tren de Aragua (TdA). The Dispatch asked DHS earlier this week to produce those alleged social media postings, but the department still had not done so by the time this story was published.

These claims and counterclaims could have been adjudicated in a formal hearing before the accused were shipped to a foreign prison where scores of men in a single cell sleep on steel beds. But the Trump administration denied the deportees that opportunity and defied an oral order from a U.S. district court judge telling the administration to return them to the United States.

An unusual but perhaps unsurprising dynamic has emerged following President Donald Trump’s invocation of Alien Enemies Act on March 15. Several prominent conservative thinkers dispute Trump’s authority to invoke the law—which was only used three times since 1798 during wars declared by Congress—or at the very least say the law requires some due process for the accused. By contrast, the reaction among the staunchest civil libertarians in the congressional GOP has been muted, while many of their Republican colleagues enthusiastically support Trump’s actions.

Take, for example, Mark Krikorian of the Center for Immigration Studies, a Trump supporter and an immigration hawk’s immigration hawk—if there’s a policy to restrict immigration to the United States or enforce immigration law, he’s almost invariably for it. But Krikorian tells The Dispatch he’s uncertain of the legal argument for invoking the Alien Enemies Act. If it’s going to be invoked, those accused of being members of Tren de Aragua deserve a hearing to challenge the accusation that they are gang members, he says.

“Even if you accept the administration’s use of the Alien Enemies Act in the way they’re using it—and I’m open to it—[the accused] have a right to a hearing as to whether the president’s [proclamation] applies to them,” Krikorian said. He noted that even during the last war declared by Congress—World War II—those deported as German nationals under the Alien Enemies Act were entitled to some due process before they were deported. “Even in 1943, we’re formally at war with Germany … if you say, ‘Look, I’m not a German citizen,’ you got a hearing, and how can you not?”

During a hearing earlier this week before the U.S. Court of Appeals for the D.C. Circuit, Judge Patricia Millett observed that “Nazis got better treatment under the Alien Enemies Act.” During World War II, Millett said, the proclamation invoking the Alien Enemies Act “required the promulgation of regulations, and they had hearing boards before people were removed. And yet here there’s nothing in [Trump’s proclamation] about hearing boards.” 

There are also several conservative legal scholars who take issue with Trump’s actions. John Yoo, for example, is a former Justice Department lawyer in the George W. Bush administration and clerk for Supreme Court Justice Clarence Thomas, who is now a law professor at the University of California, Berkeley. He is well known for his very robust view of presidential power, especially during wartime: He made a name for himself by arguing for “enhanced interrogation techniques” when he was with the DOJ. But Yoo is skeptical of the legal argument for invoking the Alien Enemies Act against a criminal gang rather than a nation with which we are at war, and even if the courts allow Trump to invoke the law, Yoo says the accused have a right to some due process before they are deported. A 1948 case, Ludecke v. Watkins, “says there would be some kind of right to challenge your designation under the Alien Enemies Act,” Yoo told The Dispatch. In that case, Justice Felix Frankfurter noted that the “question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may also be reviewed by the courts.”

A decade ago, one might have thought of Yoo and Kentucky GOP Sen. Rand Paul as polar opposites when it came to questions of presidential wartime powers and civil liberties. During the Obama administration, Paul filibustered the nomination of the CIA director for 13 hours due to civil liberties concerns. (Paul said the use of drones to kill a senior al-Qaeda operative in Yemen who was a U.S. citizen endangered the civil liberties of Americans in the United States.)

But Paul demurred when asked this week if those being deported under the Alien Enemies Act deserve a hearing to make the case that they aren’t gang members. “I think there’s going to be ultimately a Supreme Court case to determine whether the Alien Enemies Act is constitutional,” he told The Dispatch. “If it is, the way it’s written, [due process is] completely at the discretion of the president.” When The Dispatch pointed to hearings for those accused of being German nationals during World War II and asked Paul a second time if he personally thinks the accused gang members deserve some due process before being sent to a foreign prison, Paul again declined to directly state his view. “The law currently, you could argue, is at odds with the Bill of Rights, but the question is: Is the law still [constitutional]? The law allows complete discretion for the president.”

Had he been in touch with the administration on this matter? “Nope,” Paul replied. 

Several other GOP senators contacted by The Dispatch also declined to take a position. When Utah GOP Sen. Mike Lee—who has been outspoken on civil liberties issues like the Patriot Act and wiretapping—was asked if the accused are entitled to any due process, he simply described the Trump administration’s view while declining to state his own views.

Louisiana GOP Sen. Bill Cassidy, who voted to convict Trump in his second impeachment trial, did not reply when asked about the Alien Enemies Act—an aide interrupted to say he was not taking questions about deportations.

Sens. James Lankford of Oklahoma and Mike Rounds of South Dakota both said they were taking a wait-and-see approach before weighing in on the Alien Enemies Act deportations. 

“I do not know the background of the process” by which the accused were designated gang members, Lankford told The Dispatch. “I do think it’s important for the information to come out—how the individuals are chosen, who are they, what [defense] opportunities did they have—because this is a power any president could have.” 

“I think the courts are going to make a determination as to whether there were civil rights violated or constitutional rights violated. I’ll wait to see what the court determination is,” Rounds said.

Among the GOP senators who spoke to The Dispatch, only Lindsey Graham of South Carolina made a case that “some truncated system [of due process] makes some sense, but there’s no right to be here illegally.”

Missouri GOP Sen. Josh Hawley, a former clerk to Supreme Court Chief Justice John Roberts, told The Dispatch the accused are “not entitled to due process … especially if they’re not U.S. citizens.” 

Was Hawley confident that everyone sent to El Salvador is in fact a member of Tren de Aragua? “Well, I trust the administration on this. I mean, that’s their job to get it right.” 

And what of those imprisoned in El Salvador who deny being members of Tren de Aragua? “I’m sure they all say that,” Hawley replied. He maintained the accused are “not entitled” to an individualized hearing “under our Constitution, as a matter of law.”

When The Dispatch pointed to the 1948 Supreme Court case saying the accused did in fact have a right to challenge their designation under the Alien Enemies Act, Hawley asked to be sent the case so he could read it before commenting. The Dispatch sent his office the case but did not hear a reply by publication time.