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The judges Trump scorns should stand their ground

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The Economist

Mar 21, 2025 10:25 AM IST

On March 15th the president publicly invoked the Alien Enemies Act, a law dating from the age of the Founding Fathers, last invoked during the second world war.

Members of Tren de Aragua are, to use one of the president’s old phrases, bad hombres. The gang, which originated in Venezuela’s prisons just over a decade ago, has industrialised people-smuggling. It has sidelines in forced prostitution and drug-dealing and uses extreme violence to get its way. Who, then, could object to the deportation of gang members to El Salvador, where they are now in prison? To quibble about the legal power and processes under which they were removed from America seems beside the point. The gang’s victims did not enjoy due process.

President Donald Trump speaks at an education event on Thursday, March 20, 2025.(AP) PREMIUM

President Donald Trump speaks at an education event on Thursday, March 20, 2025.(AP)

Such is the emotional and political power of the Trump administration’s highest-profile immigration enforcement yet. Mass deportation has proved harder and slower than expected, so the White House needed a quick win to signal toughness. As a legal question, though, it is more complicated. This newspaper has argued that, although Donald Trump may be pursuing policies we disagree with, so far he has acted within the bounds of the president’s constitutional powers. We have also said that the time to be really alarmed is when he ignores a court order. Did it just happen?

On March 15th the president publicly invoked the Alien Enemies Act, a law dating from the age of the Founding Fathers, which was last invoked during the second world war. That same day two flights left Texas, deporting passengers under this authority. A federal judge gave an order to halt the flights. But the Department of Justice said the order was moot because the planes were already in international airspace, among other tendentious excuses.

The Alien Enemies Act is drafted broadly and is deferential to the president, as is true of most emergency powers. In case of an “invasion or predatory incursion...by any foreign nation or government”, the president can have the invaders detained and removed. Crucially, the president gets to decide when such an invasion has occurred. Tren de Aragua is obviously not a foreign nation, but the White House claims it is “closely aligned” with Venezuela’s corrupt and hostile government. On the surface, this sounds like an administration testing the bounds of presidential authority in the courts, which all administrations do from time to time.

However, both the known details of the case and the context are alarming. The courts have a role because the powers Mr Trump is claiming are unusual and their justification is flimsy. America is not at war with Venezuela, to the dismay of many Trump-supporting Venezuelan émigrés. It is a huge stretch to argue that a gang is akin to an arm of the state, even if it bribes a lot of officials. This was not a national-security emergency: the deportees were already in custody. The government has broad powers to deport foreigners convicted of crimes. What Mr Trump appears to be claiming is the right to designate people as gang members—on what evidence is unclear—and send them to be locked up in a country where torture is common and gang suspects can be held indefinitely without trial. You don’t have to be a tattooed Venezuelan to be worried by the suspension of habeas corpus.

The context is the blizzard of challenges to the common understanding of the law, on topics such as birthright citizenship, the limits to free speech and whether a president can shut an agency created by Congress. Other presidents have clashed with the courts, but their arguments have been more modest, their tactics less bare-knuckle.

Faced with an adverse ruling, the lawful response is to appeal. This administration does that. It also fires up its supporters with talk of judges thwarting the people’s will. And it issues threats. Mr Trump attacked the judge as a “Radical Left Lunatic”, implied he was crooked and called for his impeachment. Given the fury of MAGA diehards and the pardoning of the January 6th rioters, judges who cross the president may reasonably fear for their physical safety. Small wonder the chief justice issued a rare rebuke.

More details about the Tren de Aragua case may emerge, and the administration will no doubt adjust its tactics in response. Perhaps, if some of the deportees prove innocent, they may be released. However, when a president says things like “He who saves his Country does not violate any Law” and his minions declare they “don’t care what judges think”, the threat to America—a place where the law has long tempered executive impulses—is clear. Courts can seem maddeningly slow to a government in a hurry. But that is how checks and balances work. Judges should resist Mr Trump’s power grabs. Public servants, including Mr Trump, should obey the courts.

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