The dangerous criminals should be deported; that's a no-brainer. And that's regular old law enforcement, not warfare. But rather than sort through these people, to do the hard, slow work of separating the vicious from the well-meaning, the Trump administration is whipping up an emergency to justify acting in bad faith. The president has effectively closed paths to asylum and terrified would-be migrants by sending immigrants to a Salvadoran prison known for its cruelty, and without so much as a charge, trial or sentence.
It took a federal judge from Texas - a Trump appointee, in fact - to call the administration on its absurd and blatantly unconstitutional misuse of the Alien Enemies Act of 1798. It's a wartime authority enacted during the presidency of John Adams. The act allows the president to detain or deport the natives and citizens of an enemy nation with whom we're at war. Presidents have invoked the act three times: The War of 1812, World War I and World War II. It's probably best known as the dubious rationale for the incarceration of more than 100,000 Japanese Americans during World War II.
U.S. District Judge Fernando Rodriguez, Jr., a 2018 Trump appointee, issued a permanent injunction last week against the administration's use of the Alien Enemies Act to deport Venezuelan migrants to a prison in El Salvador without any semblance of due process - a right guaranteed by the Constitution. A former partner with the Houston law firm Baker Botts, the judge wrote that Trump's reliance on the act "exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute's terms."
Doing his own research, Rodriguez found that the words of the Alien Enemies Act in their original sense referred to armed forces. "(Trump's proclamation) makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation," he wrote in a 36-page ruling.
"Plain, ordinary meaning." The judge's words could have tripped off the tongues of Justices Clarence Thomas and Samuel Alito, perhaps the two most fervent constitutional "originalists" on the Supreme Court. The OG of "originalists" himself, the late Justice Antonin Scalia, would have concurred. Whether Rodriguez is an originalist, we can't say. What we can say is that he respects the Constitution, a claim we cannot make for this president or his anti-immigration henchmen.