There are some sayings in the Bible that become more relevant by the day: “Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged; and with what measure ye mete, it shall be measured to ye again” (Matthew 7).
I was reminded of this recently while watching President Donald Trump and his appointees Kristi Noem, Pam Bondi, and Kash Patel shamelessly and repeatedly slander immigrants. They continue to claim, without evidence, that these people are criminals and terrorists, that these immigrants are so very dangerous and violent they need to be swept off the street by masked ICE agents with automatic weapons. I ask: If these allegations are so very clear, why not bring them to court?
But from the very beginning, Donald Trump has exaggerated the threat posed by both those who have entered the country illegally and those awaiting judgment on their asylum claims. The Vera Institute, a nonprofit working to “minimize the harms to people impacted by the criminal justice and immigration systems,” reminds us that it is legal to seek immigration asylum in the United States. “Asylum is a form of protection that allows people to remain in the United States and avoid deportation back to a country where they fear persecution or harm because of their identity, religion, or political beliefs. Under both U.S. and international law, people who face danger in their homelands have the right to go to other nations to seek safety and to have their requests for asylum considered.”
To start that process, one either had to be at a point of entry into the country or already be in the country. You also had to qualify as a refugee under the U.S. Refugee Act of 1980:
The term ‘refugee’ means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion …
Unfortunately, this process has broken down and there are not enough immigration judges to hear these claims in a timely manner. Vera notes:
Vera offers some reasonable suggestions to improve the process:
Providing legal representation to asylum seekers is one way to protect their rights as they attempt to navigate the extremely complex path to legal residence in the United States. Currently, people facing deportation do not have a right to legal representation at government expense if they cannot afford an attorney. As a result, many people, who are legally eligible for asylum, are instead deported back to the dangerous circumstances they were trying to escape in the first place.
[Emphasis added.]
But the reality is the Trump administration has absolutely no desire to make the system better. They are committed to arresting and deporting as many immigrants as possible. For years, Donald Trump has been exaggerating the threat immigrants pose. CNN reported on this during the 2024 campaign:
CNN explains:
The topic on which Trump had the most concrete details is his plan to deport many millions of undocumented immigrants. Trump repeated false claims that many migrants are former prisoners or have been institutionalized in their home countries. CNN has reported there is no data to support the idea that a rise in immigrants drives a rise in crime. Most measures of violent crime in the US have actually been falling.
Catherine E. Shoichet had previously reported for CNN that the statistics tell a very different story:
In a recent Pew Research Center report about the situation at the US-Mexico border, 57% of Americans say the large number of migrants seeking to enter the country leads to more crime. In other words, most people in the US are now tying crime to recent increases in immigration. That jumped out at me because it flies in the face of years of studies looking at what actually happened after immigrants came to communities across the US. Many researchers crunching the numbers have found there’s no connection between immigration and crime. Some have even found that immigrants are less likely to commit crimes than people born in the US.
Here are some statistics. As of October 2024, The Migration Policy Institute notes:
Immigrants in the United States commit crimes at lower rates than the U.S.-born population … This reality of reduced criminality, which holds across immigrant groups including unauthorized immigrants, has been demonstrated through research as well as findings for the one state in the United States—Texas—that tracks criminal arrests and convictions by immigration status.
[Emphasis added.]
Most recently, the Trump administration has made Kilmar Abrego Garcia the example of the “danger” we face. He is the tattooed Latin American who, they allege, has beaten his wife, is a member of an El Salvadoran gang, and has a criminal record. To magnify these allegations, the Department of Homeland Security (DHS) posted this highly provocative portrait of Abrego Garcia on its website. DHS offered what they called “THE REAL STORY,” declaring Kilmar Abrego Garcia “an MS-13 Gang member with a History of Violence.”
Trump played his part by posting this image on his Truth Social network:
And then the Trump administration posted this on the official White House Instagram account:
I previously examined these false charges “Guilty until proven innocent.” All of these accusations from the White House have made Kilmar Abrego Garcia the most famous of all of the immigrants who have been arrested, imprisoned, and sometimes deported without the issuance of signed warrants by a judge, jailed and/or deported without an opportunity to disprove the allegations, jailed and/or deported without due process and a trial. Yes, without the critically guaranteed writ of habeas corpus, a right our Founders expressly included in our Constitution.
So what exactly is the “writ of habeas corpus”? Let’s turn to history and William Blackstone’s “Commentaries on the Laws of England” (1765–1769), a compendium of English law. In “Book I: Of the Rights of Persons,” Blackstone notes the threats to personal liberty and the response of the legal system:
The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation … Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals …
Here again the language of the great charter [The Magna Carta] is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land … that no freeman shall be imprisoned or detained without cause shewn, to which he may make answer according to law. By … if any person be restrained of his liberty by order or decree of any illegal court, or by command of the king’s majesty in person, or by warrant of the council board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of habeas corpus, to bring his body before the court of king’s bench or common pleas; who shall determine whether the cause of his commitment be just, and thereupon do as to justice shall appertain.
[Emphasis added.]
The Brennan Center offers this additional analysis:
The writ of habeas corpus protects individuals against unlawful exercises of state power. Since pre-revolutionary American history, habeas has guaranteed people seized and detained by the government the right to question the grounds for their detention. It has been available to citizens, non-citizens, slaves, alleged spies, and alleged enemies alike. Habeas is so fundamental to America that the Framers wrote the writ into the Constitution. Indeed habeas is the only common law remedy enshrined in the Constitution …
The Founders fought a revolution against the kind of excessive and arbitrary executive action habeas prevents. In the Declaration of Independence, they objected to King George Ill’s abuse of his detention power. In the Federalist Papers, Alexander Hamilton declared habeas corpus a ‘bulwark’ of individual liberty, calling secret imprisonment the most ‘dangerous engine of arbitrary government.’ … Habeas corpus has been suspended on only the rarest of occasions in American history and only temporarily. It was suspended twice during the Civil War, at a time when Washington, D.C. was surrounded by Confederate Virginia to the west and mobs in Maryland threatened to cut off supplies and troops to the capitol. It was also suspended after the Civil War when armed insurrectionists made it impossible for courts to function in the South; decades later, in the early 1900s, during an armed rebellion in the Philippines; and one final time in 1941 in Hawaii, immediately after Pearl Harbor. Each time, Congress responded to an present and immediate emergency. Each time, Congress specifically limited suspension to the duration of the emergency that necessitated it. And, each time, Congress made a determination that the public safety required suspension of this most fundamental right. In short, habeas is at the core of Americas laws and Constitution. It has rarely been suspended, and then only in the face of an active, outright insurrection.
Clearly, the Trump administration wants desperately to evict as many immigrants living here as it can—and as quickly as it can. To do that, in the face of the predictable opposition, and the demand for due process, the Trump administration has suggested that an emergency currently exists, that we are facing an insurrection and a war.
So here is the Alien Enemies Act of 1798, the legislation that President Trump suggests justifies his suspension of due process:
Section 1. That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, 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 …
And here is Donald Trump’s “public proclamation”:
The proclamation claims:
Tren de Aragua (TdA) is a designated Foreign Terrorist Organization with thousands of members, many of whom have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States … TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States … Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result 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 … As President of the United States and Commander in Chief, it is my solemn duty to protect the American people from the devastating effects of this invasion … [And] I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.
In a 226-year span, the Alien Enemies Act of 1798 had been invoked only three times — until now. President Donald Trump fulfilled a campaign promise to use the wartime act as a shortcut to deport suspected members of a Venezuelan gang, according to an executive order signed March 15 …
Here are the three times:
War of 1812: After declaring war on Great Britain in 1812, the United States used the Alien Enemies Act to declare all British nationals living in the states as ‘alien enemies’ due to their allegiance to British royalty … World War I: Those deemed ‘alien enemies’ during the war were not allowed to own firearms and were limited in where they could work and live, according to the archives. Additionally, policies surrounding threats and attacks on the U.S. and aid to enemies were invoked … By the end of the war, 480,000 Germans were registered, and 6,300 were arrested under this guidance … Regulations on those deemed enemy aliens were lifted approximately one year and eight months after war was declared and just over a month after armistice on Nov. 11, 1918 …
World War II: … Though thousands were detained in Japanese internment camps following the attack of Pearl Harbor, this did not fall under the Alien Enemies Act of 1798 as many of those held in the camps were American citizens, according to the Truman Library. This fell under Executive Order 9066 signed by Roosevelt two months after Pearl Harbor. The Enemy Aliens Act invoked at the time led to many deportations, according to the archives, but few people received a hearing … By the end of the war, over 31,000 suspected enemy aliens and their families, including a few Jewish refugees from Nazi Germany, had been interned at Immigration and Naturalization Services (INS) internment camps and military facilities throughout the United States … The final internment camps didn’t close until 1948, approximately three years after the second world war ended, according to the National Archives. The last remaining detainees were also released then.
Maybe I am missing something, but whether you agree or disagree with these measures, they were undertaken as we were fighting very real wars. But the undeniable terror of war is now mimicked by the feeble Truskmumpian attempt to convince us that amongst the millions of immigrants whom we have been living alongside are members of a Venezuelan gang who, without an army, without artillery, and without tanks, are waging a war we need to win—even if it means sacrificing our Constitution. If you ask me, it is an insult to those who are victims of the exceedingly tragic wars in Ukraine, Palestine, and Israel—real wars with countless tragic casualties and communities rendered inhabitable.
The Alien Enemies Act is the excuse the Trump administration has always wanted to justify reclaiming America for the real Americans. To send the immigrants—except for some white South Africans—back home.
But it seems the Trumpsters failed to account for the especially relevant Section 2 of the Alien Enemies Act:
And be it further enacted, That after any proclamation shall be made as aforesaid, it shall be the duty of the several courts of the United States, and of each state, having criminal jurisdiction, and of the several judges and justices of the courts of the United States, and they shall be, and are hereby respectively, authorized upon complaint, against any alien or alien enemies, as aforesaid, who shall be resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President of the United States shall and may establish in the premises, to cause such alien or aliens to be duly apprehended and convened before such court, judge or justice; and after a full examination and hearing on such complaint. and sufficient cause therefor appearing, shall and may order such alien or aliens to be removed out of the territory of the United States, or to give sureties of their good behaviour, or to be otherwise restrained, conformably to the proclamation or regulations which shall and may be established as aforesaid, and may imprison, or otherwise secure such alien or aliens, until the order which shall and may be made, as aforesaid, shall be performed.
[Emphasis added.]
The above is a highfaluting way of saying it is the courts who must determine whether or not the behavior of the accused justifies apprehension and imprisonment and removal. It is this reality of judicial review that is driving Donald Trump and his minions so very crazy. It is our judges—in response to court cases brought by the accused immigrants—who are actually performing their duty under the Alien Enemies Act. Examining whether the presidential proclamation and the Alien Enemies Act itself are relevant in these cases. Is Tren de Aragua a “designated Foreign Terrorist Organization . . . perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States”? And are each of these immigrants actually engaged in that invasion or predatory incursion against the United States? And have they been accorded the rights available under the Constitution to defend themselves against these charges?
The best part of this story is that judges are preforming their duties with care and due diligence. Praise to United States District Judge Paula Xinis who is presiding over Abrego Garcia v. Kristi Noem. On April 6, 2025, Judge Xinis ruled:
Defendants seized Abrego Garcia without any lawful authority; held him in three separate domestic detention centers without legal basis; failed to present him to any immigration judge or officer; and forcibly transported him to El Salvador in direct contravention of the INA. Once there, U.S. officials secured his detention in a facility that, by design, deprives its detainees of adequate food, water, and shelter, fosters routine violence; and places him with his persecutors … In short, the public interest and companion equities favor the requested injunctive relief.
Add Chief Judge James E. Boasberg’s decision in J.G.G. v. Trump in the District Court for the District of Columbia. This case concerns immigrants who were picked up, held in Texas, then placed on a plane and taken to El Salvador. The lawyers, scrambling to respond to events that were moving at lightning speed, filed quickly in the District of Columbia, hoping to prevent their deportation:
Judge James E. Boasberg ruled almost immediately:
MINUTE ORDER: The Court has reviewed Plaintiffs’ Complaint and Motion for Temporary Restraining Order. Given the exigent circumstances that it has been made aware of this morning, it has determined that an immediate Order is warranted to maintain the status quo until a hearing can be set. As Plaintiffs have satisfied the four factors governing the issuance of preliminary relief, the Court accordingly ORDERS that: 1) Plaintiffs’ 3 Motion for TRO is GRANTED; 2) Defendants shall not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court; and 3) The parties shall appear for a Zoom hearing on March 17, 2025, at 4:00 p.m. So ORDERED by Chief Judge James E. Boasberg on 3/15/2025. (lcjeb1)
The Trump administration disregarded Boasberg’s order and proceeded to send some immigrants to El Salvador. They then appealed Boasberg’s decision to the U.S. Court of Appeals for the District of Columbia Circuit and the Supreme Court. On March 26, 2025, Judge Henderson wrote for the Appeals Court and made this critical point about the inappropriate use of the Alien Enemies Act in this case:
The term ‘invasion’ was a legal term of art with a well-defined meaning at the Founding. It required far more than an unwanted entry; to constitute an invasion, there had to be hostilities. As one leading dictionary of the era specifies, an invasion is a ‘[h]ostile entrance upon the right or possessions of another; hostile encroachment,’ such as when ‘William the Conqueror invaded England.’ Samuel Johnson, Invasion, sense 1, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773). As another recounts, an invasion is a ‘hostile entrance into the possession of another; particularly the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force.’ Noah Webster.
On April 7, 2025, the Supreme Court vacated the temporary restraining orders imposed by Judge Boasberg while ruling that the prisoners/plaintiffs should have brought this action in “the district of confinement”—in this case Texas—and that they should have waged their challenges to their removal under the Alien Enemies Act by invoking the “writ of habeas corpus.”
Two things happened. First, Judge Boasberg pursued his demand for accountability and information from the Trump administration regarding when and how decisions were made to deport these plaintiffs and his great concern that the government had disregarded the restraining orders he had ordered. Second, the lawyers for the plaintiffs refiled their complaint before the United States District Court in Brownsville, Texas, and highlighted the denial of their rights to due process and habeas corpus under Donald Trump’s proclamation and the Alien Enemies Act.
On May 1, 2025, in Texas, United States District Court Judge Fernando Rodriguez, Jr. ruled:
Petitioners J.A.V., J.G.G., and W.G.H. are natives of Venezuela currently detained at the El Valle Detention Center in Raymondville, Texas. They bring this action under 28 U.S.C. § 2241, alleging that by seeking to remove them from the United States based on the Proclamation, Respondents do so unlawfully and in violation of their due process rights under the Fifth Amendment to the Constitution. Petitioners challenge that the President can invoke the AEA under the alleged circumstances, and also deny that they are members of TdA …
Petitioners seek habeas relief by challenging the President’s invocation of the AEA on three grounds. First, they contend that the Proclamation fails to provide Petitioners with reasonable notice and a meaningful opportunity to challenge their designation as alien enemies. Second, they argue that the Proclamation ‘does not fall within the statutory bounds of the AEA,’ both because no ‘invasion’ or ‘predatory incursion’ has occurred or been threatened, and no ‘foreign nation or government’ has engaged in such conduct. (PI Mot., Doc. 42, 22) And third, Petitioners claim that the Proclamation ‘violates the specific protections that Congress established under the INA for noncitizens seeking humanitarian protection.’ (Id. at 30) …
Conclusion: The Court has concluded that J.A.V., J.G.G., and W.G.H., in their individual capacity and as representatives of the certified class, have demonstrated entitlement to relief in habeas. Respondents have designated or will designate them as alien enemies under the Proclamation, subjecting them to unlawful detention, transfer, and removal under the AEA. As a result, J.A.V., J.G.G., and W.G.H. are each entitled to the granting of their Petition for a Writ of Habeas Corpus, and a permanent injunction prohibiting Respondents from employing the Proclamation and the AEA against them. The certified class warrants similar protection. The Court will issue a Final Judgment with the appropriate relief.
[Emphasis added.]
Then, there is Judge Alvin Hellerstein who wrote in his opinion and order granting preliminary injunction in G.F.F. v. Donald J. Trump:
This nation was founded on the ‘self-evident’ truths ’that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, [and] that among these are Life, Liberty and the pursuit of Happiness.’ Declaration of Independence, at ¶ 2 (1776). Our Constitution embodies these truths, in a limited government of enumerated powers, in its system of checks and balances separating the executive, legislative and judicial branches, and in its guarantee that neither citizen nor alien be ‘deprived of life, liberty, or property, without due process of law.’ U.S. Const. amend. V; see Plyler v. Doe, 457 U.S. 202, 210-12 (1982) (extending these protections to aliens).
Judge Hellerstein argued:
Yet, in March 2025, more than 200 aliens were removed from this country to El Salvador’s Terrorism Confinement Center (‘CECOT’), with faint hope of process or return … Respondents purport to act under Presidential Proclamation No. 10903, 90 Fed. Reg. 13,033 (2025) (the ‘Presidential Proclamation’), which invoked a 1798 Act of Congress, the Alien Enemies Act (‘AEA’), 50 U.S.C. §§ 21-24, to detain and deport suspected members of Tren de Aragua (‘TdA’), a Venezuelan gang and designated foreign terrorist organization. Respondents cite only the section of the AEA that grants power to the President to ‘apprehend[], restrain[], secure[], and remove[]’ aliens when ‘invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.’ 50 U.S.C. § 21.
Conveniently, Respondents fail to mention another section of the AEA that imposes a ‘duty’ on the federal courts to give a ‘full examination and hearing’ to the Executive’s ‘complaint’ against the alien, and to order the alien’s removal only upon ‘sufficient cause appearing.’ 50 U.S.C. § 23. Thus, under the AEA, and a recent decision of the United States Supreme Court, removal may not occur except after notice and hearing. See Trump v. J.G.G., 145 S. Ct. 1003, 1006 (2025).
[Emphasis added.]
Lastly, there is the Supreme Court’s April 10, 2025, decision in Kristi Noem v. Kilmar Armando Abrego Garcia on the government’s application to vacate Judge Xinis’s injunction:
You might have imagined that would have done it, that the Trump administration would have obeyed and worked “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador.” But we are living in a time when Donald Trump believes he is above the law, certainly not bound by the opinions of judges who don’t agree with him.
The Trump administration has employed a number of tricks to avoid complying. Trump officials claim that the Supreme Court decision isn’t really what it is. And they have done whatever they can to stymie the other requirement the Court has set, making it almost impossible for Judge Paula Xinis to learn exactly what our government is doing to return Abrego Garcia—“the steps it has taken and the pursuit of further steps.”
As The New York Times reported on May 16, 2025:
It has been more than a month since the Supreme Court ordered the White House to work toward securing the release of a Maryland man who was wrongfully deported to a notorious prison in El Salvador in March. Top administration officials — including President Trump himself — have repeatedly said that the man, Kilmar Armando Abrego Garcia, will not be coming back to the United States, largely because of accusations that he is a member of the violent street gang MS-13.
Their public statements have raised significant questions about whether the administration is openly defying the Supreme Court’s instructions — and what, if anything, might be done about that. But even as those weighty issues simmer in the background, the White House is confronting a more immediate concern: whether it has been abiding by a separate court order to answer questions about the way it has been handling the case.
On Friday, lawyers for the Justice Department are scheduled to appear in Federal District Court in Maryland to defend their latest effort to avoid disclosing details about several key aspects of the proceeding. Those include the diplomatic steps that officials have taken in the past few weeks toward releasing Mr. Abrego Garcia, as well as the nature of the deal between the White House and the Salvadoran government to house deported immigrants in its jails.
All of this must be taken in the larger context of the administration’s growing determination to evade the judgement of its co-equal branch, the judiciary. You can thank the right-wing members of the Supreme Court who encouraged Donald Trump to believe he is beyond the reach of judgment. They have, after all, granted him immunity from the crimes for which ordinary people are held accountable. They have, in effect, enabled the man who now seems determined not to take them seriously.
In case you hadn’t gotten the message, Presidential Advisor Stephen Miller made it crystal clear. Donald Trump and his confederates are prepared to squeeze what is left of the life out of our dying democracy:
Here is how the UK Independent put it:
The Trump administration is ‘looking at’ ways to suspend habeas corpus, a Constitutional right that allows a person to challenge government detention, as a way to assist President Donald Trump’s mass deportation agenda. Stephen Miller, the White House deputy chief of staff who is largely credited with helping shape Trump’s immigration agenda, told reporters on Friday that the administration could circumvent habeas corpus under claims of an ‘invasion.’
The right of habeas corpus is directly given in Article I of the U.S. Constitution, allowing those detained by the government to challenge their detention by filing a petition with a court that has jurisdiction. However, habeas corpus can be suspended ‘in cases of rebellion or invasion’ when public safety may require it.
The Independent added:
To invoke such, the administration would need to prove that the country was under threat of rebellion or invasion by a specific country or group of people – which it is not currently … ‘A lot of it depends on whether the courts do the right thing or not,’ he told reporters. Since taking office, the Trump administration has sought ways to expedite the removal of undocumented immigrants and bypass traditional due process. But judges have consistently intervened in challenges.
Abolishing habeas corpus and changing the rule of law is the next step for Donald Trump. Up untill now, the judges have done their jobs—they have looked at the facts, looked at the law, and rendered their decisions. Thus far, Donald Trump seems determined to ignore them. He and his confederates have acted as prosecutors, judges, juries, and, worst of all, jailers. For the moment, they seem oblivious of Matthew 7 and the judgment day to come.
