The Trump administration is in locked court battles with the Democrats over most of the MAGA issues on President Trump’s agenda. At almost every turn, be it the work of DOGE, federal personnel policies, federal procurement practices, the size and shape of the federal government or illegal immigration, the Democrats, in unprecedented fashion, have made the courtroom – rather than the voting booth – the default battle ground.
So, it stands to reason that a good deal of today’s Washington decision-making will now come to be sifted through differing notions of separation of powers. That is, constitutionally, it matters who decides as much as what is decided.
But there is an unnerving dimension to this development. Unelected litigants and judges will now end up being the arbiters of most issues instead of the duly elected decision-makers.
This week, we will be getting a taste of how this conflict may play out.
Thus, last Friday, the Trump administration filed an emergency application in the United States Supreme Court to allow it to continue to summarily deport alleged members of Venezuela’s Tren de Aragua (TdA) gang to a maximum-security prison in El Salvador, pursuant to the 1798 Alien Enemies Act. That law empowers a president to deport people from the United States in times of war without allowing any hearings. El Salvador has agreed to accept the deportees for a set fee.
However, as The Wall Street Journal has noted, the Alien Enemies Act has been invoked only three times, most recently during World War II, and by its terms, only when the U.S. faced potential invasion by a hostile government.
President Trump, though, determined that Venezuelan President Nicolas Maduro was taking equivalently aggressive action against American territory through the Tren de Aragua gang. And in February, he made official findings that “TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction …of the Maduro regime in Venezuela.”
The application to the Supreme Court followed the ruling of a federal appeals court, upholding a temporary block on the deportations imposed by federal judge James Boasberg who is presiding over a lawsuit challenging Trump’s view of the act and its applicability to the deportations. The plaintiffs are Venezuelan deportees who argue that the U.S. is not at war with Venezuela and also maintain that the presidential findings misrepresent the relationship between Tren de Aragua and Maduro. Judge Boasberg said he was temporarily pausing the deportations so that these issues and certain preliminary and collateral legal issues could be sorted out before the case proceeded on the merits. He emphasized that he was not taking lightly that the deportees were not granted a hearing at which time they could challenge the claims against them.
On the other hand, the lawyer for the Trump administration, Acting Solicitor General Sarah Harris, told the Supreme Court that the matter was too urgent to wait for the usual legal processes to play out, and that the Trump Administration “has an overwhelming interest in removing these foreign actors (i.e., the deportees) whom the president has identified as engaging in irregular warfare and hostile actions against the United States.”
The Supreme Court has ordered that the lawyers for the deportees respond to the administration’s application by 10 o’clock April 1 (after this is being written). So, we should soon get some indication as to how the Justices view the overall issue of who should properly decide what. To be sure, the deportation case implicates serious national security concerns militating in favor of greater deference to the executive branch while other cases may not. But it would be fair to expect that the way the Justices approach the question in the Alien Enemies Act context will be instructive. Hopefully a majority will not exalt deductive reasoning over investigative resources.
