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Donald Trump on Saturday invoked a centuries-old law to detain and deport members of a Venezuelan gang, but his executive order was swiftly blocked by a federal judge.
Trump’s order cited the Alien Enemies Act of 1798 to remove members of the Venezuelan gang Tren de Aragua, who it said had “unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States”.
The policy relies on an authority that was last invoked in the second world war to intern non-US citizens of Italian, German and Japanese descent — one of the most controversial episodes in American history.
James Boasberg, a US federal judge in the District of Columbia, on Saturday blocked the deportation of individuals in custody who are subject to the executive order for 14 days.
The law invoked by Trump “does not provide a basis for the president’s proclamation given that the terms invasion, predatory incursion, really relate to hostile acts perpetrated by any nation and commensurate to war,” Boasberg said, according to media reports.
The White House did not immediately respond to a request for comment.
The executive order was the latest escalation in Trump’s aggressive clampdown on immigration. The president has promised mass deportations while implementing a flurry of measures including seeking to limit birthright citizenship and declaring a national emergency at the US-Mexico border.
While the order targets members of Tren de Aragua, it states that the “Secretary of Homeland Security retains discretion to apprehend and remove any Alien Enemy under any separate authority”. This implies it may broaden the application of a law that critics say could turbocharge deportations while sidestepping due process.
“Invoking the Alien Enemies Act is a dangerous abuse of power intended to deprive people of their legal rights,” said Allison McManus, managing director for National Security and Foreign Policy at the Center for American Progress.
The government last month designated Tren de Aragua a foreign terrorist organisation, after Trump on the first day of his second presidency directed his cabinet to assess a string of groups including the Venezuelan gang for national security threats.
The executive order cited Interpol Washington, which said that “Tren de Aragua has emerged as a significant threat to the United States as it infiltrates migration flows from Venezuela”.
Trump’s order stated that the gang “continues to invade, attempt to invade, and threaten to invade the country” — rhetoric often used by the president when describing immigration policy.
Legal scholars have argued that referring to illegal immigration as an “invasion” may give Trump, under US law and the Constitution, broad powers to deport individuals en masse or keep them in custody with no trial.
The executive order came hours after the American Civil Liberties Union on Saturday filed a lawsuit on behalf of five Venezuelan men in immigration custody who feared imminent removal if the Alien Enemies Act was invoked.
This measure would remove non-US citizens “without any opportunity for judicial review,” the ACLU said in court documents, adding that the statute in question was a “wartime measure that has been used only three times in our Nation’s history: the War of 1812, World War 1 and World War II”.
The government then filed an appeal in the District of Columbia circuit court challenging an earlier temporary restraining order handed down by Judge Boasberg.
“This Court should halt this massive, unauthorized imposition on the Executive’s authority to remove dangerous aliens who pose threats to the American people,” the US Department of Justice said in court filings.
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