The Alien Enemies Act, Deportations, & Defying the Judiciary

Episode Notes

Transcript

Virgil Wiebe:

Shock and awe was the word of the day, and maybe it’s still the word of the week and the month by the administration on the immigration side, that’s what we were promised. What is encouraging to see is to see a judge like Judge Boberg rise to the occasion, not be intimidated by the government attorneys to call them to account, and also on very short order issue, multiple rulings. His 37 page memorandum opinion of a couple of days ago is just in and of itself, just a beautiful piece of jurisprudence.

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J. Craig Williams:

On March 15th, 2025, the Trump administration defied an oral order from US District Court Judge James Bosberg to turn around or halt flights of Venezuelan migrants headed to a Salvadorian prison after the administration used the Alien Enemies Act of 1798 to deport more than 200 alleged members of the Venezuelan Trend, Deua Gang to El Salvador. With no due process, the US Court of Appeals for the DC Circuit recently heard arguments over the Trump administration’s use of the act where Justice Department attorney Drew SSON argued that Berg’s ruling was an unprecedented and enormous intrusion upon the powers of the Executive Branch. Judge Patricia Millett responded with, there were plane loads of people. Nazis got better treatment under the Alien Enemies Act than has happened before. So what is the Alien Enemies Act and could it be used for future deportations? Today on Lawyer 2 Lawyer, we will discuss the recent deportation of Venezuelan migrants and federal Judge Berg’s ruling blocking the Trump administration from deporting non-citizens. We will talk about the Alien Enemies Act, defying the judiciary, and the next steps for individuals who are deported without due process. To help us better understand today’s topic, we’re joined by guest Virgil Wiebe, professor of law from the University of Thomas School of Law, where he teaches human rights law, immigration law, international law, law of armed conflict and legal education. He has also advised nonprofit organizations on establishing immigration programs for low-income communities. Welcome to the show, Virgil.

Virgil Wiebe:

Good to be here.

J. Craig Williams:

It’s a pleasure to have you. Just give us a little bit background about yourself and how you became interested in immigration and international law.

Virgil Wiebe:

I became interested in immigration law even before going to law school. I worked as a paralegal with an organization in South Texas and Chicago that was working to get refugees from Central America north to Canada during the late 1980s at a time when the US was inhospitable to asylum claims from those countries, not so different from now. I went to law school. While in law school I was an alternate delicate to the United Nations for a small church-based organization called Mennonite Central Committee, and for about 20 years or more, I worked with them in an effort to ban cluster munitions, and that was a heartening thing to see that come to fruition in around 2008. And I’ve been an immigration attorney for about 30 years. I have done removal proceedings, lots of asylum cases, consular processing, worked with a wide range of folks from different countries in Africa, Asia, Latin America, and occasionally from Europe, once or twice from Canada.

J. Craig Williams:

Excellent. Well, we’re going to go back a little bit further than the 30 years of your experience, a couple hundred years to the Alien Enemies Act of 1798. Let’s talk about that. Where was it used? How did we get this and what does it mean?

Virgil Wiebe:

So the Alien Enemies Act was part of a four statute group of laws called the Alien and Sedition Acts of 1798. There was the Alien Friends Act, which was a sweeping law to allow the president in times of peace to deport noncitizens. There was the Sedition Act, which really this sedition act predated the First Amendment, and it was a tremendous limitation on the rights of free speech. There were newspapers that were in the Opposition Party, which was called the Democratic Republican Party. These acts were passed by John Adams and his Federalist colleagues. That act was only used against opposition newspapers. Then there was the Naturalization Act, which increased from five years to 13 years. The period of time someone had to be a resident of the US before they could become a citizen, and that was really attacking the base of the Democratic Republican Party, at least a part of it.

And there was an effort to prevent French residents were becoming US citizens. And then there was the Alien Enemies Act, which was passed in part because there was a fear of a shooting war with France. Actually, there was a shooting war on the high seas with France. There were disputes over the US owing money to France. There was a fear that France might invade, but what’s interesting about that in the current context is there was armed conflict going on, but even with that, the Alien Enemies Act wasn’t invoked because there wasn’t an invasion of the United States by the French and there wasn’t a declared war. So the act itself was not invoked until a little over a about a dozen years later. In the interim, the other three acts expired or were repealed very quickly after Thomas Jefferson and his party gained power, but the Alien Enemies Act was left alone.

It was used during the war of 1812. It’s important to note that courts did claim jurisdiction over adjudicating disputes. There’s a case called the Williams case where Chief Justice John Marshall released someone who is being held under the act through a habeas petition. And so the courts have been involved in the Alien Enemies Act since its first invocation. Then came World War I, when it was used during World War I or shortly after. It may have been after the Act was amended just a little bit to include not only men but women as being covered by the Alien Enemies Act. There was also court oversight of the Alien Enemies Act during World War I. And then in World War ii, it was really used in tandem with internment orders against Americans and German Americans and Italian Americans, non-citizens. Of those three states were targeted and some of them were removed.

Many of them were detained since World War II and really the ignominious use of the act during that period of time, there have been apologies that have been issued around the internment of the Japanese and of Germans and Italians as well, I believe. So there’s been controversy around this act every time it’s been invoked, every time it’s been invoked, the courts have been involved in interpreting it, either trying to strike that balance between interpretation and constitutionality on the one hand and not entering into the sphere of foreign affairs discretion that the executive and the legislative branches have.

J. Craig Williams:

So it sounds like anytime that the Alien Enemies Act of 1798 gets called into service, it’s during the time of war.

Virgil Wiebe:

Very much so. The Alien Enemies Act really requires a finding that there’s a foreign nation or government, that there is a declared war with that entity or an invasion or predatory incursion into the United States by that foreign actor. There’s an effort in the executive order from President Trump to say that this nasty organization, or maybe disorganization is a better word, the trend UA is basically a branch of the Venezuelan government. The problem with that, well, the courts aren’t going there too much, but they do talk about it a little bit in the recent orders from both the DC Circuit and the District court of dc. But I’ve been doing asylum cases for a long time, and a very reliable source I’ve used is something called Insight Crime, and they study criminal organizations in Latin America. One of the things that they’ve said is it’s really hard to determine who’s a member of that organization, and I’ll come back in a little bit to that, but it was very interesting in the last week or so, the New York Times reported that contrary to what the President has said about trendy UA being connected to the government of Venezuela, the American intelligence agencies have said within the last month that the gang was not controlled by the Venezuelan government.

That the person in the Venezuelan government that they say makes that connection. The former vice president is actually no longer a part of the Maduro administration in Venezuela, and he’s actually being prosecuted for corruption. There have been exchange of gunfire between the Venezuelan government and the trend UA in Venezuela. So this intelligence assessment concluded that the gang was not acting at the direction of the Maduro government and that the two are indeed hostile to each other.

J. Craig Williams:

Even if that’s the case, have we declared war against Venezuela?

Virgil Wiebe:

We have not declared war against Venezuela.

J. Craig Williams:

So how does that fit into the use of the Alien Enemies Act?

Virgil Wiebe:

Well, let’s even assume that the trend deua, it’s been found not to be organized, that there are groups that are connected with trend awa in the United States, but they’re not coordinated. There’s not any central command and control. So to try to make that this is a foreign nation or a branch of a foreign nation is a real stretch. And then the second thing that you avert to is has there been a declaration of where there hasn’t another alternative as is an invasion? And so the government and the plaintiffs in the case, that’s now before the courts are having a dictionary battle over what did those words mean in 1798 and shortly thereafter and before? To the extent that they’ve ruled on this, the courts have leaned towards what the petitioners are saying that when we’re talking about invasion, we are talking about armed incursions by a foreign government. We’re not talking about immigration, we’re not talking about organized crime or disorganized crime. We’re talking about hostilities in the traditional sense of the word and not the rhetorical sense of the word.

J. Craig Williams:

It seems like Trump as a whole is trying to stretch the law and in this instance, trying to use a law that may or may not apply, but how effective is this? Is there a way for us to deport a gang of Venezuelans that are causing havoc in the United States? Is there a legal way to do that?

Virgil Wiebe:

This has really been stressed both by the plaintiffs and by Judge Bosberg, is that there are other tools available. Maybe they take longer, but there are tools that allow for individualized determinations under the Immigration and Nationality Act. Now that this trend, UA has been designated a foreign terrorist organization, and again, I might really characterize it as a foreign terrorist disorganization, but there are ways under Section 2 38 of the Immigration and Nationality Act that require, I don’t think enough process, but some process to allow for the deportation of people found to be a part of a terrorist organization. So there are other tools,

J. Craig Williams:

But the problem is for Trump, those tools take time, as you say. They have to have notice and the opportunity to be heard is the DC Circuit has pointed out

Virgil Wiebe:

Right.

J. Craig Williams:

At this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m your host, Craig Williams, coming to you from Southern California. I write a blog named, may You Please the Court and have three books out titled How To Get Sued the Sled and My newest book. How would You Decide 10 Famous Trials That Changed History? You can find all three on Amazon. Now, let’s get back to our conversation with Virgil Wiebe, professor of Law at the University of St. Thomas School of Law. We’ve been talking about the Alien Enemies Act and President Trump’s use of it. Is he trying to avoid noticing the opportunity to be heard and just bum rush these guys out of the country?

Virgil Wiebe:

Well, it sure seems that way. So Judge has been fairly patient in trying to find out what happened at the beginning of this case on March 15th. The conclusions that he’s coming to is that it appears that the order was signed in secret. The plan was to announce the order and then immediately remove people from the United States that somehow the A CLU got wind that this was going on. And in the wee hours of the morning of March 15th, as Judge Boberg puts it, they filed their suit over the course of the day. Early in the morning there was a TRO issued for the five named plaintiffs, and then a hearing was scheduled on a second TRO around a class. So a class was certified and then there was a hearing later in the afternoon and appears that while that hearing was going on, planes went into the air and the judge didn’t know exactly what was going on. The A CLU suggested that might’ve happened. He paused the hearing to give the government time to find out what was going on, and when they came back, the attorney said, I believe they said they weren’t sure what was going on. Might have to double check that. But then the judge said, well, if the planes are in the air, they need to be turned around and that didn’t happen.

J. Craig Williams:

There’s a lot of noise about an oral order in a written order. Can you explain the difference for those who are not lawyers?

Virgil Wiebe:

I don’t know that I can because oral orders have the same impact as written orders, and I think that the government is trying to argue that because he didn’t use the phrase turn the plane around when he made his oral order into a written order an hour or so later that it didn’t count. But I don’t know how they can say that, frankly.

J. Craig Williams:

What does this mean for the rest of people who are immigrants in our country with green cards and other means of legitimate means of being here, visas and so forth?

Virgil Wiebe:

Well, I think they tried to say, well, in this order with the President, it says it’s not targeting lawful permanent residents. And of course the Alien Enemies Act cannot be used against citizens. But what it does do is it raises the Alien Enemies Act at its furthest reach is a very sweeping law. So a next logical attempt would be to say that drug and human trafficking cartels in Mexico are a wing of the government to declare.

J. Craig Williams:

It seems like a stretch.

Virgil Wiebe:

It is a stretch, but just as an aside here as an asylum lawyer, I have argued at different points in time that people have a fear of non-state actors. The government always puts up a huge fight when you try to argue that a non-state actor is a persecutor that the government’s unwilling or unable to control. The irony here is that the government is saying trend AUA is essentially a government, but among those that were removed are people who claim that they were fleeing trend aua. And so is the administration going to join asylum seekers in their petitions when they can prove that they fear trend ua? I don’t see that happening.

J. Craig Williams:

It seems as though President Trump is also using this act to deport protestors, people who are students or have different ideas about the way that our government should be run. What’s the legitimacy of cherry picking people to deport?

Virgil Wiebe:

The administration is using another part of the loss. It’s not using the Alien Enemies Act, it’s using INA or Immigration and Nationality Act section 2 37 A four. I don’t have the language right in front of you, but it basically says that if the Secretary of State says that someone’s activities or presence is anemical to the foreign policy of the United States, they can be removed, and this includes people with green cards. The act has been used in this way, I believe in a recent amicus filing. In one of those cases, a group of over a hundred immigration professors argued that they could only find 15 times when that was used in over 11 million removal cases, and they can’t determine if they were ever used against lawful permanent residence. So it’s vanishingly small the number of times that that’s been used, and there is concern that the ACT is unconstitutional by giving so much power to one individual to make such a determination. So it is very disturbing that First Amendment rights that are available to everyone in the United States are being violated in this way apparently by the government, by also due process rights. While under the Immigration Act, you have usually have a right to a hearing before a judge.

J. Craig Williams:

Are non-citizens entitled to these rights? Are they entitled to take advantage of our constitution and our amendments?

Virgil Wiebe:

The Constitution, in almost all cases applies to everybody who’s present in the United States regardless of their immigration status. So there have been cases in the past where immigrants have been able to argue that there was selective prosecution in order to violate someone’s First Amendment rights in efforts to be deported. It’s a hotly disputed area, this 2 37 a four provision. The issue that will come up is whether or not the judge has any ability to rule on whether or not the Secretary of State has abused his discretion in making these determinations.

J. Craig Williams:

There have been a lot of deportations under the Biden administration. In fact, some people say there’ve been even more. What’s the difference here? What are we seeing the Trump do that Biden didn’t do?

Virgil Wiebe:

Well? What we’re seeing it seems is a frustration that the numbers of deportations aren’t high enough. So there is a reaching for every lever that is available under the law and stretching that as far as it’ll go. It’s also sort of a combination with really targeting speech that the administration doesn’t like around these arguments about antisemitism.

J. Craig Williams:

The Trump administration has taken a couple of shots at the Federal District court judge who’s hearing this case, judge Boberg, if that’s how you say his name, and saying that one federal district court judge somewhere in the country doesn’t have the power to overrule the president. And I know this is a stupid question because we’re both lawyers, but can you explain it for those who aren’t lawyers?

Virgil Wiebe:

Well, it’s the job of judges to interpret statutes and determine their constitutionality and the DC circuit in a two one decision yesterday backed up Judge Bosberg, so I guess it’s three judges now in the one Supreme Court case involving the Alien Enemies Act, that was decided by the Supreme Court. It was a five four to split split and there were hotly contested issues, but the court was clear that around matters of interpretation and constitutionality, the courts can enter that conversation and make rulings. The attacks by President Trump and by the Attorney General in terms of name calling and demeaning of Judge Bosberg are very disturbing. There have been articles of impeachment brought in the House of Representatives also making that argument that the judges have no call to make determinations around anything involving foreign policy. What was notable about Judge Berg’s decision from March 24th and then yesterday’s March 26th, orders against emergency motions for stays of these TROs.

What these judges did was in a very measured way, look at where that line is between interpretations of statutes encroaching on the powers of the President, and they very carefully drew the line and they’re very clear that there is power to interpret the statute and also that people who are targeted by these removal efforts have a right to process. The targeting of Judges was also seen to be too much for the Supreme Court Chief Justice John Roberts, who issued an unusual statement basically defending Judge Bosberg against these attacks. We’ll see what the Supreme Court does on the substance. That might be another thing, but that is a highly unusual thing for the Chief Justice as a Supreme Court to do.

J. Craig Williams:

It’s very unusual for the Chief Justice to speak out and speak out almost directly to the President. We’re going to take another quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. Just a note before we get back to our discussion with Virgil Wiebe, our new podcast miniseries in Dispute, 10 famous trials that changed. History’s currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe. Now. Let’s get back to our conversation with Virgil Wiebe, professor of Law from the University of St. Thomas School of Law. We’ve been talking about the use of the Alien Enemies Act. Do you think that we need to have a court that can deal with the kind of speed that we’re seeing these executive orders come out and the challenges that are being brought to them? It almost seems like we’re being steamrolled.

Virgil Wiebe:

Well, shock and awe was the word of the day, and maybe it’s still the word of the week in the month by the administration on the immigration side, that’s what we were promised. What is encouraging to see is to see a judge like Judge Bosberg rise to the occasion, not be intimidated by the government attorneys to call them to account, and also on very short order issue, multiple rulings. His 37 page memorandum opinion of a couple of days ago is just in and of itself just a beautiful piece of jurisprudence, and I would commend it to readers to look this up. He just has not only a keen judicial intellect, but also just a way with words. I had to look up what the word parla means because he was talking about the prison where these people were sent in El Salvador being parlous, and it basically means perilous and dangerous. But I enjoyed having to go to the dictionary.

J. Craig Williams:

It’s nice to read a well-written opinion, isn’t it?

Virgil Wiebe:

It sure is.

J. Craig Williams:

When we get to this well-written opinion and its ultimate effect, will we see the Venezuelans that were deported being brought back to the United States to get to process?

Virgil Wiebe:

That’s a million dollar question. I had a very brief conversation with a colleague, constitutional law guru, and he was wondering how that could happen. I do know that it has happened in the immigration context where someone has been ordered deported and their deportation order has not been stayed while their case goes on appeal and they’ve been deported, and then they’ve won their case and the government’s been ordered to go and get them and bring them back. So I don’t know exactly the mechanisms for doing that now, but it is interesting to note that even in this action with these planes landing in Venezuela, that the US tried to remove people that even the Salvadoran government hadn’t agreed to take. There were eight Venezuelan women. El Salvador said, we’re not going to take the deportation of women to this prison, and a Nicaraguan got mixed into the batch as well.

J. Craig Williams:

Why are we sending people to the wrong countries? Why aren’t they being returned to a country that they came from?

Virgil Wiebe:

Well, another area of frustration, not only for the Trump administration but for others, is the issue of countries saying they’re not going to take their nationals back. Sometimes people with criminal records, they’re not going to take back or just overall. So the Venezuelan government has since this happened, agreed to take its nationals back after seeing what happened in El Salvador, but that’s why there’s an effort to send them somewhere else. But that raises all kinds of other questions that I don’t think have been addressed very well, and I’m not exactly sure how to address them, but this feels like extraordinary rendition and not deportation when it’s done under the Alien Enemies Act, not of the Immigration and Nationality Act, and also not allowing people or sending people to a country where there’s a possibility of torture. We have and treaties about not sending people where they will be tortured, and the reports coming out of this prison are horrendous.

For example, I read a report that someone had been beaten to death by guards in the prison, and then the body had been left in the prison until it began to smell extreme overcrowding, beatings. These people that have come from the United States, it’s been all over the news. They may well be targeted because they’re a part of this group and comes back to issues of process where they are claiming that they are at least a substantial number of these folks are claiming that they are not a part and never have been a part of the trend. Aua Deua and they’ve been, the administration tries to assure the court that they’ve done careful vetting of these people, but sometimes it appears that it’s just come down to their tattoos.

J. Craig Williams:

One last question as we begin to wrap up this session. What’s the punishment for the government for violating the Alien Enemies Act if in fact it’s determined that they did?

Virgil Wiebe:

I imagine that Judge Boberg is at least thinking about a contempt finding, how that plays itself out in particulars. I don’t know.

J. Craig Williams:

It would be interesting to see if he calls President Trump back into court and has a contempt hearing. I doubt that would happen.

Virgil Wiebe:

I doubt that would happen. That certainly would be interesting. There is some argument that the Administrative Procedures Act, which is being used as the foundation of this argument on behalf of some of the people who’ve been removed, doesn’t apply to the President, but it should apply to his under liens. Yeah, it will be interesting to see where this goes. The Supreme Court in its ruling last summer around presidential power was fairly sweeping in its kind of green light to violate the law. Law. Yeah,

J. Craig Williams:

Yeah. It’s a terrible decision. Well, vi, we’ve just about reached the end of our program, so it’s time to wrap up and get your final thoughts. Let’s put a hat on this and see what we can do to get it straightened out. Anything.

Virgil Wiebe:

Well, the courts that have now ruled on this have raised serious questions about the Alien Enemies Act and its application to these individuals. Very concerning is the administration’s possible disobedience of an order, the vilification of the judges involved. We’ve certainly seen it with Judge Bosberg. I would be surprised if we don’t now see it against the two district court judges. So it’s both the interpretation of this particular act, but also the vilification of the judiciary. Both of those things are very concerning, and they’re not yellow flags. They’re red flags,

J. Craig Williams:

And there sure have been an awful lot of red flags. Well, thank you very much. We’ve enjoyed having you on the show. Virgil Wiebe Pressive Law from the University of St. Thomas School of Law. Thank you very much.

Virgil Wiebe:

You’re very welcome.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topic. This is one of the most bizarre cases I’ve read about and the behavior of our government without providing these people due process is abhorrent. I can’t understand why we’re not following our own laws. I’m sure that President Trump is trying to stretch our laws, trying to change our laws, and in some instances himself trying to overrule our laws, but thankfully, our judiciary is standing in his way like it’s supposed to and doing its job. Hopefully, we’re going to figure this out sooner rather than later, but it seems like we’re going to be in this for a while. So hang on tight here on Lawyer 2 Lawyer. We’ll follow along with what’s happening and keep you informed. Well, that’s it for Craig’s Ran on today’s topic. Let me know what you think. If you’d like what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit us at the legal talk network.com, where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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