Authorizing Official Impatience
Terry H. Schwadron
March 17, 2025
We may as well expect a Donald Trump executive order authorizing official impatience.
Moving to use the 1798 Alien Enemies Act for the third time in U.S. history to speed the deportation of Venezuelans whom Team Trump believes are part of the Tren de Aragua criminal gang, launching two planes with deportees and the decision of a federal judge to halt it all came with dizzying speed on Saturday. The planes were ordered recalled by the judge, but the first flights landed in El Salvador with 238 deportees despite the order.
What comes of disobeying a federal judge is next. For Team Trump, it was the now-recognizable pattern: Action for the Trump agenda first, then a check on what is legal, and then denying that they had done so or that the judge could rule on the question. Joe Biden had declared the same group official targets for the Immigration and Naturalization Service, and border and customs officials already had been arresting and deporting gang members.
The focus was on applying this 1798 law that would allow deportations without the usual due process hearing involved, certainly a wild expansion of Trump’s powers.
In 1798, under threat of a war with France, Congress adopted five laws that allowed the government to imprison and deport non-citizens who might sympathize with the French. The Alien Enemies Act was used during the War of 1812, World War I and World War II, as part of the legal rationale for mass internment in the U.S. of people of German, Italian and Japanese ancestry. It has been considered a stain on American values since.
The driving force now was impatience that numbers of deportations are not rising fast enough and a sense that the individuals caught up by a campaign against Venezuelan gangs do not deserve a hearing before being loaded onto a plane. If the case is so strong against members of criminal gangs, wouldn’t it be clear in a hearing within, say, a week?
Impatience seems the singular force beyond immigration for why federal employees have to be cut loose in violation of administrative law and contracted procedures, why whole agencies, including those offering humanitarian food and medicine programs, must be hacked up overnight, why Trump, billionaire advisor Elon Musk and Cabinet secretaries are chucking enforcement of regulations left and right without public hearings or debates over policies long since approved by Congress.
Efficiency or Due Process?
The headlines ranged from focus on the judicial halt order (New York Times, Washington Post) to those that insisted “Trump Tries to Demolish Due Process” (Huffington Post) to the judge keeping “terrorists” in the U.S. despite Trump’s efforts (Fox News).
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What they did not address was why the sudden hurry? Or, as with many of the challenged executive orders, questioning who gave this policy a legal review before launching? Or why these gang members have not been among the thousands already deported before or since Trump’s inauguration?
As a result, there already are the first reports of Venezuelan families here under a Biden Temporary Protected Status label for fleeing conditions in Venezuela that at least raise questions covered by asylum concerns who are getting caught up in this new, streamlined route to immediate deportation.
The immediate prompt for the weekend legal maneuvering was a lawsuit by The American Civil Liberties Union and Democracy Forward saying five Venezuelan men being held at an immigration detention center, were at “imminent risk of removal” under the Alien Enemies Act. Judge James Boasberg blocked their deportation, prompting an immediate appeal from the Justice Department. Meanwhile, the Trump administration agreed to pay El Salvador $6 million to imprison about 300 alleged members of the Tren de Aragua gang for one year. The planes with deportees apparently were headed to El Salvador and Honduras.
In any case, Trump reportedly has been upset that deportation numbers are not rising as fast as he wants.
War or Impatience?
Whatever else about this law, it was enacted at a time of perceived war, and its application previously was under wartime rules. Trump has declared a war on migrants. Obviously, the underlying issue here is whether we are under “invasion” in a war-like sense, and whether as non-state actors, migrants can constitute an “enemy” force.
Congress’ research arm said in a report last month officials may use the foreign terrorist designations to argue the gang’s activities in the U.S. amount to a limited invasion. “This theory appears to be unprecedented and has not been subject to judicial review,” the Congressional Research Service said.
Critics, including the Brennan Center for Justice, say Trump and his Justice Department have it wrong. Attorney General Pam Bondi said in a statement that the judge was favoring terrorists over the safety of the American people. The gang members are among millions fleeing an economically savaged Venezuela, and some have been involved in U.S. crimes.
What this previously untested application calls for is removing the step about hearing the asylum applicant or TPS-protected migrant before deportation. That process has been a mainstay in U.S. justice.
White House disdain aside, the coincidental timing with a separate immigration foul in Boston, in which a Brown University medical organ transplant doctor with an H1-B visa was denied entry to the U.S. at Boston upon her return from visiting Lebanese parents just shows the excess of haste with administrative procedure — also done in violation of a court order to stand down. The reasons for the doctor’s rejection to enter the country were not spelled out.
What none of this deals with is the same impatience that has Trump announcing that he will shut down seven more small agencies, including the parent of the Voice of America operation, despite ongoing litigation about the process questions arising from his team’s hastiness in carrying out its vows to cut government. Likewise, Trump could reduce federal employment and still live within the rules, or he could seek to persuade international warring partners towards peace rather than insisting on results in a day or two.
In Trump world, only the word of a single autocrat impatient for results right now matters.
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