In a Truth Social post on May 16, President Trump criticized the Supreme Court ruling blocking his use of the 1798 Alien Enemies Act to deport Venezuelan migrants. Trump said in his post. "The Supreme Court of the United States is not allowing me to do what I was elected to do." The Supreme Court upheld lower courts in banning further deportations until it can be determined whether these immigrants are being allowed to contest their deportation, or given “due process of law,” as guaranteed by the U.S. Constitution. Trump told reporters, "We have thousands of people that are ready to go out, and you can't have a trial for all of these people."
Trump seems to think that winning the presidential election automatically gives him the authority to do whatever he said he would do during his campaign. He simply signs an executive order or takes an executive action and expects it to be carried out, without Congressional approval or Judicial review. More than 200 ongoing court cases are challenging the legality or constitutionality of Trump’s executive orders and actions.
Trump supporters don’t seem to understand that an election does not change the U.S. Constitution or the “rule of law.” No matter how many votes the president may get, how many members of Congress are of one political party, or the conservative or liberal leanings of the Supreme Court, the Constitution and laws remain unchanged.
Article V clearly describes the specific process by which the U.S. Constitution can be amended or changed. It is a multi-step process of consensus rather than a single majority vote. First, proposed amendments must be approved by at least two-thirds of the members of both Houses of Congress. Alternatively, the legislatures of two-thirds of the States can call for a Constitutional Convention to propose Amendments.
Once proposed constitutional amendments have been approved by Congress or a Constitutional Convention, they must be ratified or approved by at least three-fourths of the States—currently 38 states. Amendments can be ratified by State Legislatures or by State Constitutional Conventions, at the discretion of Congress. Only 27 constitutional amendments have been ratified, including the first ten amendments, known as “the Bill of Rights.”
U.S. Presidents take an oath to “preserve, protect, and defend the Constitution, not to ignore or defy it: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
The Constitution also specifies how laws are made, interpreted, and enforced. The Constitution gives Congress the power to make laws—the power to legislate. The Judiciary, or Federal Court system, is given the power to resolve disputes concerning how laws are interpreted and enforced, including whether they comply with the Constitution. The “laws of the land” include “legislation” or laws passed by Congress, and “case law” or common law that evolves from court decisions resolving legal disputes regarding legality or constitutionality.
The Constitution gives the President executive powers, or the power to execute and enforce the laws passed by Congress, not the power to make or interpret laws. “Administrative laws” are limited laws that affect the functioning of the Executive branch of government rather than laws affecting the public. The president can veto bills passed by Congress, but Congress can override a presidential veto with a two-thirds vote of both Houses. Once a law has been passed by Congress and signed into law, presidents have a constitutional responsibility to faithfully execute and enforce the law, regardless of their political priorities or promises.
The Fifth Amendment to the Constitution states: “No person…shall be deprived of life, liberty, or property, without due process of law." President Trump has attempted to circumvent the Constitution, rather than protect and defend it, by claiming the extrajudicial presidential authority of the Alien Enemies Act of 1798. The Act allows the president to suspend some rights of “due process,” such as trial by jury, in cases of a foreign invasion or when public safety is in danger.
This act was first used during the War of 1812, when the U.S. was under attack by England and the White House was burned to the ground. It was used again during World War I and World War II, when there were legitimate fears that domestic subversives would assist in threatened foreign invasions of the U.S. The U.S. government has since apologized for using the Act to rationalize the internment of Japanese Americans during World War II.
The Acts states that the president may invoke the Alien Enemies Act only in times of a “declared war” or when a foreign government threatens or undertakes an “invasion” or “predatory incursion” against U.S. territory. The Constitution gives Congress, not the president, the power to declare war. There is no indication that Congress is considering declaring war on anyone.
Trump has suggested that the Venezuelan gang members he wants to deport without “due process of law” are agents of the Venezuelan government, and that Venezuela is planning to invade the United States. The administration has provided no evidence to support either claim. Candidate Trump didn’t consider immigration to be an urgent issue when he used his influence to block a bipartisan bill that would have increased border security and expedited the legal process of deporting illegal immigrants. It only became urgent when he needed it to campaign on as a problem that “only he” could solve.
As Commander-in-Chief, the president has the constitutional authority to repel sudden attacks or invasions by soldiers or agents of foreign countries. However, the president does not have the authority to arbitrarily decide when an invasion or predatory incursion is underway and must be immediately repelled, without congressional approval.
Trump’s primary public justification for deporting illegal immigrants without allowing them to defend themselves is that they are dangerous criminals who are a threat to public safety. He claims that there are tens of thousands who need to be deported, and it would take too long to allow them to defend themselves, as required by the Constitution. If so, what about the other tens of thousands of criminals who are U.S. citizens? The Constitution states that "no person," including accused criminals, "shall be deprived of life, liberty, or property without due process of law."
It seems obvious that Trump is trying to use the Alien Enemies Act to subvert the limits placed on presidential powers by the U.S. Constitution. Thus far, the Courts have blocked further deportations without due process until Trump’s lawyers have made their case for invoking the Alien Enemies Act before Federal Judges and the inevitable appeals have worked their way through the courts. Even the Alien Enemies Act requires that detainees receive notice of their detention and have the opportunity for a court, not the administration, to determine if their detention is lawful.
Ultimately, the Supreme Court will determine what procedures the Trump administration must follow in deporting illegal immigrants. More than 200 cases, including immigration cases, have been filed in Federal Courts challenging the legality and constitutionality of Trump’s numerous executive orders and actions.
In resolving the 200-plus cases before them, the Courts will decide how much power the Constitution allows the Trump administration to exercise or impose on the American people. If Trump openly defies the Supreme Court, it will then be up to Congress to fulfill its oath to preserve, protect, and defend the Constitution of the United States by impeaching, convicting, and removing him from office.
The 2024 elections did not change the U.S. Constitution or the responsibilities of the president and other elected and appointed government officials who take an oath to preserve, protect, and defend it.
John Ikerd
https://www.usatoday.com/.../trump-attacks.../83679791007/
https://www.npr.org/.../trump-courts-immigration-judges...
https://www.archives.gov/founding-docs/constitution
https://www.archives.gov/mileston.../alien-and-sedition-acts
https://www.brennancenter.org/.../alien-enemies-act...