In March I wrote an article explaining my worry that Trump was using the Alien Enemies Act of 1798 to deport suspected gang members back to South America, in violation of that act. My concern was that the Alien Enemies Act has specific requirements when it can be utilized, and those requirements (a state of war or incursion by a foreign power) were not met. I believed that the courts would see the realities surrounding the case and strike down the use of the act. Now I am not so sure about the ultimate outcome.
The U.S. District Court in Texas agreed with the above noted argument and also questioned the due process afforded those accused. A few days ago, the 5th Circuit Court of Appeals agreed generally and, in a 2-1 split decision, upheld the lower court’s decision halting the use of the act. (The 5th Circuit is a very conservative court).
The dissent was smart, detailing the fact finding of the courts and opining most forcefully that the courts could not question the finding of President Donald Trump that the gang members were part of an incursion by a foreign power, even though there was no direct or even indirect evidence of that. There was a lengthy analysis of the dictionary definitions of words such as “incursion” and other relevant syntax. The Supreme Court will have the case soon, with a decision probably being announced in the spring.
I am worried. I think we will lose, which means that Trump will probably be allowed to use the act since the conditions precedent to its use have been met by his unilateral conclusion that an incursion exists. I am also worried that the Supreme Court may rule that the president’s decision, in interpreting statutes and the law, must be given great deference and is subject to little judicial review. This would pave the way for an imbalance of the protections afforded by the Constitution, which are assured by the independent powers of all three branches of government.
There is no reason to think that if he can use the act he won’t take a lesson from its use in World War II with an executive order to move 120,000 Japanese Americans into internment camps in California. This action, and the Supreme Court decision that upheld it, was described by Chief Justice John Roberts as having no place in American law and the Constitution, years after President Ronald Reagan signed an act providing $20,000 in damages to each interned individual. I wonder how Roberts will rule if Trump starts to set up large permanent internment facilities for immigrants, legal or otherwise, under the same statute.
This brief introduction would and could not have been written in March. Then I still hoped that the conservative members of the Supreme Court would do their duty and uphold over 200 years of precedent and the clear language of the statute and the due process protections in the Constitution. Now I am not sure, but after watching the Court regularly overrule stays issued by the lower courts that found that some of the administrations actions were improper and should cease while the cases were being appealed, I have concluded that the Court is tacitly complicit in the concept of a supreme executive branch and president with minimal review (if any) by the judiciary.
Since January 2025, the Supreme Court has lifted stays against the administration’s actions at least 17 times, using its “shadow docket,” or emergence applications. The Court granted all 15 of Trump’s emergency applications between April and mid-July, allowing him to quickly effectuate his policy changes. The administration has mostly used the shadow docket (requesting emergency actions by the Court), which result in brief, often unsigned decisions. Judges and legal scholars have criticized these types of applications for a variety of reasons, but most importantly for Trump, they allow him to go forward while the underlying cases remain undecided.
Allowing the stayed actions to proceed, and otherwise delaying the cases’ arrival at the Court, has allowed Trump’s illegal activity to continue unabated, thus normalizing it in the eyes of the public and delaying the Supreme Court’s decisions on the legality or illegality of the underlying conduct. (Think about Trump’s actions concerning birthright citizenship, the Alien Enemies Act, the closing of government agencies, the withdrawal of support for colleges and universities, the firing of government officials, the use of the military in our cities, the legality of his tariffs, etc.)
I am sad to say this, but it seems we are closer to a legal coup d’etat than at any time in our history, with a Supreme Court working to insure that Trump’s illegal interpretations of government power and his use of it to punish dissent and his enemies is legitimate. By not deciding these cases, many of us have resigned ourselves to a new order domestically and internationally, with a new king and an oligarchy of the rich and corrupt. This must not happen. I only hope that the legal system, no matter how slow and cumbersome, will not be corrupted by the political beliefs of certain members of the Supreme Court.
