Are You an Alien Enemy?

Within political circles, in the news and among the talking heads on the television, there are ongoing discussions as to whether the actions of the 47th president will lead to a Constitutional crisis. Are we there yet or not? I believe that we are already there.

In our daily lives it is easy to lose track of all the chaotic actions taken by the president and his DOGE-bros to disrupt and destroy the federal government under the lie that they are eliminating waste, fraud and abuse. Possibly, you have yet to personally feel anything different or to have experienced any changes to your daily life. Therefore, you may ask, why do I really care about any of it? You may even believe that you are apolitical or “tired” of all the discussions and drama and divisiveness so you just tune it out. Good luck. While you were not paying attention, you lost many of the rights we thought were guaranteed to us by our Constitution.

Too dramatic? Let’s take a closer look.

On 14 March 2025 Trump signed an Executive Order claiming to have the right under the Alien Enemies Act of 1798 (as amended in 1918) to declare that a group of undocumented immigrants from Venezuela are conducting “irregular warfare” against the United States and that they therefore fall under the provisions of the Act because they are perpetrating an “invasion” or “predatory incursion” into the U.S. Specifically, he claims that a Venezuelan based gang known as Tren de Aragua (or TdA) is acting in concert with the government of Venezuela to destabilize the U.S. by using drug trafficking as a “weapon” to attack U.S. citizens.

For context, the provisions of that 18th century law (USC 50 Sections 21-24) have been invoked three times. It was used during the War of 1812, World War I and, perhaps best well-known, for the shameful internment of Japanese-Americans during World War II. The law is generally considered to be relevant only in the context of a “declared war” which was used literally in the era in which it was written. The Trump Administration is trying to declare that the other language in the Act applies, specifically that illegal immigrants constitute an “invasion” or “predatory incursion” — although those terms are also used literally to mean large scale armed attacks by foreign forces as in a war or a step towards war. Throughout our history, the Act was understood to be a war time power only, not a hedge to get around the use of regular immigration law. Under the Constitution, only Congress can declare war. However, to provide for emergency responses, a president can declare that an invasion or predatory incursion is underway.

In the public relations realm, the Trump Administration has a powerful story to tell. Let’s face it, no one defends TdA as a bunch of nice fellows. They are murderous drug dealers that have no mercy for anyone from outside of their gang. In a word, they are scum. This provides a means to attack those that criticize Trump’s actions as being outside the law and they continue to attack anyone, including federal judges, that would disallow their use of the Alien Enemies Act to arrest and deport them.

But that is not the issue. And they know it. No one in the U.S. thinks that TdA is a positive force in our lives. Anyone you ask would say that they should be arrested, tried, punished and deported. The courts and the critics of the Administration are not arguing about the nature of TdA. They are arguing that there are already effective laws that deal with criminals like this gang that can be used under the Constitution rather than ignoring the protections we all should have as basic rights. (Curiously, Trump declared last week that he never signed the Executive Order, which itself creates a whole new set of questions.)

What happened on the weekend of 15 March is that the Immigration and Customs Enforcement (ICE) officers made 238 Venezuelans and 23 Salvadorans “disappear” into one of the world’s most cruel and dangerous prisons in El Salvador under the alleged provisions of the Alien Enemies Act. To date, our government refuses to release the names of those captured. However, the Hollywood style videos of the deportations and incarcerations have given friends and families of those abducted a chance to identify their loved ones that disappeared without a trace. Most have no criminal record. Some appeared for their regularly scheduled check-in appointments as they awaited an asylum hearing and were arrested and thrown into the Salvadoran jail. Note that the Venezuelans were not deported to their home country but to a jail in El Salvador. Oh, yeah. I forgot to add that the Trump Administration is paying the president of that country 6 million dollars to keep them.

The Constitution protects all people living in the U.S. regardless of their immigration status. Everyone has the right to due process under the law if accused of a crime. Everyone within the U.S. is eligible for a fair and impartial hearing by the government under the Fifth and Fourteenth Amendments before their life, liberty, and the pursuit of happiness is taken away from them. The Sixth Amendment provides for legal counsel for anyone accused of a crime. Given the nature of the arrests, it is worth noting that the Fourth Amendment protects all of us against unlawful entry and searches without a warrant or probable cause.

Here is where it gets interesting for you and me and why I think it is important for all of us to pay attention. The Trump Administration attorneys in the Department of Justice argue that under the Alien Enemies Act, the Fourth Amendment does not apply. In other words, if you are in the next group of people that Trump unilaterally declares are enemies of the state, the federal government can break down your door and come charging in without probable cause or a search warrant.

Additionally, in a sworn declaration during a court hearing on the use of the Act, ICE Acting Field Office Director of Enforcement and Removal Operations Robert Cerna argued that “the lack of specific information about each individual actually highlights the risk they pose” and “demonstrates that they are terrorists with regard to whom we lack a complete profile.” He added that “while it is true that many of the TdA members removed under the AEA [Alien Enemies Act] do not have criminal records in the United States, that is because they have only been in the United States for a short period of time. The lack of a criminal record does not indicate they pose a limited threat.”

Many of those arrested and accused of being members of the gang were targeted solely because they had tattoos. One of those individuals, a professional soccer player in Venezuela who had been tortured by the government regime and received permission to enter the U.S. awaiting an asylum hearing had a tattoo. Of his favorite soccer club. Real Madrid.

So, for those keeping score at home, the Trump Administration claims that they can enter your home for any reason without a court order and arrest you, even if you have no criminal record. Because, according to Mr. Cerna, you are even more dangerous because you don’t have a criminal record. And don’t have any strange looking tattoos in Spanish.

We are living in Bizzaro World.

The issue is now in the courts. As expected, Trump and his henchmen and women in the Administration are crying loud and strong that a single federal judge cannot thwart the will of the great and powerful king in the White House. Apparently, they slept through their civics class that discussed the three equal branches of the government under the Constitution. If they do not like what the district court judge did, then appeal it. Instead they are calling for his impeachment. (Which will go nowhere but will provide for a fund raising advertisement for the MAGA crowd.) Eventually, this issue should wend its way to the Supreme Court. In my mind, this is a no brainer in favor of the Constitution as we have understood it for nearly 250 years. However, nothing is “for sure” anymore. After all, the current Supreme Court is the same one that said the president is immune from prosecution for any act taken within his official duties. Maybe they say that the president can use the Alien Enemies Act in whatever way he wants.

Additionally, the Supreme Court is sometimes reluctant to rule on Constitutional issues when it comes to specific duties assigned to other branches of the government. In this case, Congress declares war under the Constitution and the president carries out the duties of Commander-in-Chief.

This will be a real test of our checks and balances of the three equal branches of government which is already under tremendous stress as the Trump administration continues the quest to turn Trump into the autocrat he so craves to be. He has already subdued the Congress that seems now to exist only to rubber stamp whatever Trump wants. MAGA Republicans bend the knee whenever required and the Democrats in Congress seem leaderless and impotent.

The attack on the judiciary is a direct frontal assault. Trump already silenced several major law firms that stood up to him in the past. They caved. Several news organizations caved to Trump’s extortion threats. So far the judicial branch is holding. I am not sure how long they can continue to hold out, especially as they come under increased threats to their well-being as well as threats to their families.

Please pay attention. We are in a Constitutional crisis. Trump and his supporters are about to decide to ignore or defy a judicial order, putting our cherished democratic republic in danger. It can happen here. It is happening here.