“President Donald Trump says he is determined to deport “terrorist sympathizers,” including legal permanent residents as well as foreigners with student visas. Secretary of State Marco Rubio says the targets have a history of “tearing things up” on “our university campuses” by starting riots, taking over buildings, and harassing people.
While those descriptions seem accurate as applied to at least some of the foreign students whom Rubio wants to expel, they are less apt in other cases. Contrary to the way Trump and Rubio portray this initiative, neither rhetorical support for terrorism nor disruptive conduct is necessary to invoke the sweeping legal authority on which they are relying, which applies to any noncitizen whose “presence or activities” Rubio thinks could have “potentially serious adverse foreign policy consequences.”
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That gloss rings true as applied to an activist like Taal, who went beyond praising Hamas (which on its own would be constitutionally protected speech) by engaging in conduct that interfered with other people’s use of Cornell facilities, to the point that he was banned from campus. But Rubio’s description is more than a little misleading as applied to a student like Ozturk, who seems to have done nothing more than express views that offend Rubio.”
“President Donald Trump claims that the Alien Enemies Act of 1798 grants him the power to deport certain Venezuelan-born aliens without due process based on the mere allegation of membership in a criminal street gang.
But the text of the Alien Enemies Act does not allow the president to do anything of the sort. “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,” the act states, the president may direct the “removal” of “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.”
The alleged crimes of the alleged members of the street gang Tren de Aragua do not meet this legal standard. There is no “declared war” between the United States and Venezuela, and there is no “invasion or predatory incursion” of the U.S. by “any foreign nation or government.” The gang is not a foreign state, and the gang’s alleged crimes, as heinous as they may be, do not qualify as acts of war by a foreign state. Trump’s frequent talk about a rhetorical “invasion” of the U.S. by undocumented immigrants utterly fails to satisfy the law’s requirements.
The fatal defects of Trump’s position are further illuminated when you compare Trump’s stance with James Madison’s 1800 “Report on the Alien and Sedition Acts.” (The Alien Enemies Act was one of the three laws that comprised the Alien and Sedition Acts.)
As Madison explained, there are two categories of “offences for which aliens within the jurisdiction” of the United States “are punishable.” The first category involves “offences committed by the nation of which they make a part, and in whose offences they are involved.” In this case, “the offending nation can no otherwise be punished than by war.” In other words, the offending nation in this case has committed an act of war against the United States. The aliens who fall within this category are “alien enemies.”
The second category involves offenses committed by aliens “themselves alone, without any charge against the nation to which they belong.” In this case, “the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations; the individual only, and not the nation is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations.” The aliens who fall within this second category are “alien friends.”
Notice that “alien friends” may certainly be punished by the normal U.S. legal system for whatever crimes they commit while on U.S. soil. They may be deprived of their life, their liberty, and their property. But—and this is a big but—they may only be deprived of life, liberty, or property after they have received due process of law, which is what the Constitution guarantees to all persons, not just to all citizens.”
The Trump administration are not free speech extremists.
“Secretary of State Marco Rubio said Thursday that the State Department has revoked more than 300 student visas, as the Trump administration continues to detain and deport pro-Palestinian student activists at universities across the country.”
“After a University of Washington lab technician and green card holder was recently detained by U.S. Immigration and Customs Enforcement, her family is speaking out.
Lewelyn Dixon, 64, who’s had legal permanent status in the U.S. for 50 years, was arrested at the airport in Seattle and placed into ICE custody after coming back from a trip to her native Philippines in late February. She has a hearing scheduled for July, but her loved ones are calling for her release, telling NBC News that she is the glue that holds the family together.”
“Alawieh, who graduated from medical school in Lebanon, first came to the United States in 2018 to start a fellowship at Ohio State University. She later began working as a kidney transplant specialist and professor at Brown University’s medical school and obtained an H-1B visa.
According to CNN, Alawieh’s immigration issues first began last month, when she traveled to Lebanon, and her visa to renter the United States was delayed due to increased security vetting of Lebanese travelers. The DHS posted on X that Alawieh had attended the funeral of Hassan Nasrallah, the former leader of Hezbollah who was assassinated by Israeli forces last year. “Alawieh openly admitted to this to CBP officers, as well as her support of Nasrallah,” the post reads.
It’s unclear why Alawieh was stopped by border officials when she arrived in Boston last Friday. A court filing obtained by Boston local news station WCVB states that Alawieh was found with photos of Nasrallah on her phone—though, again, it’s not clear why her phone was being searched in the first place.
“In explaining why these multiple photos were deleted by her one to two days before she arrived at Logan Airport, Dr. Alawieh stated that she did not want to give authorities the perception that she supports Hezbollah and the Ayatollah politically or militarily,” the filing read.
According to the document, Alawieh explained “I think if you listen to one of his sermons, you would know what I mean. He is a religious, spiritual person. As I said, he has very high value. His teachings are about spirituality and morality.””
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“”This administration is not going tolerate individuals having the privilege of studying in our country and then siding with pro-terrorist organizations that have killed Americans,” Leavitt said last week. “We have a zero-tolerance policy for siding with terrorists, period.””
“The Trump administration could be gearing up for broader warrantless immigration enforcement. Lawyers for the administration “have determined that an 18th-century wartime law the president has invoked to deport suspected members of a Venezuelan gang allows federal agents to enter homes without a warrant,” The New York Times reported on Thursday, which would effectively set “aside a key provision of the Fourth Amendment that requires a court order to search someone’s home.”
The “18th-century wartime law” in question is the Alien Enemies Act of 1798, which gives the president broad authority to detain and deport noncitizens during times of war. Trump invoked the law earlier this month to justify deporting alleged members of Tren de Aragua, a Venezuelan gang. Members of the gang had “unlawfully infiltrated the United States and are conducting irregular warfare” against Americans, Trump explained in an executive order.
“All such Alien Enemies, wherever found within any territory subject to the jurisdiction of the United States, are subject to summary apprehension,” the order continued. Senior Justice Department lawyers believe that language and the Alien Enemies Act’s historic applications mean “the government does not need a warrant to enter a home or premises to search for people believed to be members of that gang,” the Times reported.
The administration should think twice about acting on that interpretation, given the fallout over last weekend’s Alien Enemies Act–related deportations. An ICE official’s sworn affidavit “paint[ed] the picture of a Trump administration and ICE management that were determined to deport as many people as possible, no matter how tenuous the connection to Tren de Aragua or any crime,” wrote Reason’s Eric Boehm. Reports on the deportees suggest that many may have been sent to a Salvadoran prison for extremely flimsy reasons, including innocuous tattoos. It would’ve been far better for the government to assess those grounds for deportation in court hearings rather than whisking people out of the country and potentially making grave, life-altering mistakes.”
“The government now claims “he had willfully failed to disclose his membership in several organizations, including a United Nations agency that helps Palestinian refugees, when he applied to become a permanent U.S. resident last March,” reports The New York Times. “The government also said that Mr. Khalil failed to list his continuing employment with the Syria Office in the British Embassy in Beirut, Lebanon, after 2022.” If these allegations are true, they may put the deportation on firmer footing: It is easier for the authorities to argue that the First Amendment isn’t a relevant factor when the issue is whether Khalil disclosed relevant information during a green card application.
But even if that is true, the Justice Department has shown its true motivation, even if it may be able to weasel out of the hole it’s dug. Since it told The Free Press that “the allegation here is not that he was breaking the law” and suggested that “he was mobilizing support for Hamas and spreading antisemitism in a way that is contrary to the foreign policy of the U.S.,” it sure seems obvious that it was Khalil’s role in the Columbia protests that attracted ICE agents initially. If officials can now find a better pretense to deport him, that may pass more legal muster, but they already made clear that this is retribution for protest. This will have a chilling effect on speech. And if they legitimately believed he was a threat, they should have actually spent the time to substantiate this.”
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“As for what actually happens to Khalil, it’s not clear these new allegations will make much of a difference: “In order to deport Mr. Khalil on the basis of the new allegations, the government would have to convince an immigration judge that any failure to disclose the relevant information was willful, and that it would have made a difference in his chances of receiving legal permanent residency status””
“Until Trump took office in January, the AEA had been invoked only three times in 226 years: during the War of 1812, World War I, and World War II. All of those situations fell into the “declared war” category. The AEA has never previously been invoked in response to a putative “invasion or predatory incursion” outside the context of a declared war. That is the threat Trump cites to justify peremptorily deporting suspected members of the Venezuelan gang Tren de Aragua.”
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“Trump does not claim to be at war with Venezuela. Nor does he claim that the Venezuelan government has mounted an “invasion or predatory incursion against the territory of the United States.” And a criminal organization, even one that has corrupted or “infiltrated” a foreign government, is not a “hostile nation or government” as those terms are ordinarily understood.
Nor does Trump’s understanding of “invasion or predatory incursion” make sense in the context of the AEA. “As the Supreme Court and past presidents have acknowledged, the Alien Enemies Act is a wartime authority enacted and implemented under the war power,” Katherine Yon Ebright, a lawyer at the Brennan Center for Justice who specializes in national security issues, explained last fall. “When the Fifth Congress passed the law and the Wilson administration defended it in court during World War I, they did so on the understanding that noncitizens with connections to a foreign belligerent could be ‘treated as prisoners of war’ under the ‘rules of war under the law of nations.’ In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold.””
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“”There is a lot of law about what constitutes a foreign government,” Gelernt told Boasberg. “And I don’t think the United States recognizes [Tren de Aragua] as a foreign government. They recognize Venezuela as a foreign government. I think that’s the
historic understanding of the statute.”
Gerlent also questioned the government’s definition of “invasion or predatory incursion”: “We think the Court certainly can review whether immigration constitutes some kind of invasion….We know of no historical precedent that would suggest that straight migration or noncitizens coming and committing crimes constitutes an invasion within the meaning of the statute or the Constitution.””
“Does it matter that Khalil is not a U.S. citizen? In the 1945 case Bridges v. Wixon, the Supreme Court held that “freedom of speech and of press is accorded aliens residing in this country.” That case involved a longtime legal resident from Australia who was deemed deportable based on the allegation that he had been affiliated with the Communist Party.
“Once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders,” Justice Frank Murphy wrote in a concurring opinion. “Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens.””
“The Trump administration announced Friday that it would end a program that allowed hundreds of thousands of migrants to live and work in the United States. Established under President Joe Biden, the initiative offered legal status and work authorization to Cubans, Haitians, Nicaraguans, and Venezuelans (CHNV) who passed security screenings and secured U.S.-based financial sponsors.
Over 500,000 migrants used the program to come to the U.S. legally—suggesting that many people will choose an accessible legal pathway over illegal entry. Getting rid of the CHNV program eliminates that choice for future migrants and penalizes those who came to the country “the right way.””
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“With CHNV benefits set to expire on March 25, many of the program’s half-million beneficiaries could soon find themselves living and working in the U.S. illegally.”