Court Says Trump Can’t Use 18th-Century Law To Deport Venezuelan Immigrants

Summary

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The NPR Politics Podcast

Episode: Court Says Trump Can’t Use 18th-Century Law To Deport Venezuelan Immigrants
Date: September 4, 2025
Hosts/Reporters: Sarah McCammon (Politics), Ximena Bustillo (Immigration Policy), Frank Ordonez (White House)

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Episode Overview

This episode explores a significant court decision blocking the Trump administration from using the 18th-century Alien Enemies Act to deport Venezuelan immigrants. The conversation breaks down the history and use of the law, its implications for executive power, recent changes in immigration adjudication, and the broader context of the administration's immigration enforcement strategy.

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Key Discussion Points & Insights

1. Background: Trump’s Use of the Alien Enemies Act

• Historical Context:
  • Trump tried to invoke the Alien Enemies Act, a wartime law from the 18th century, to expedite mass deportation—especially targeting Venezuelan immigrants alleged to be linked to the Trende Aragua gang, which he claims is directed by Venezuela's Maduro regime.
  • Quote [01:23] - Frank Ordonez:

    "It's basically an 18th century wartime law, very obscure, called the Alien Enemies act to quickly deport large group of Venezuelans without regular due process. It's actually a law that was used to justify the incarceration of Japanese Americans as well as Italian and German immigrants in World War II..."

• Current Use:
  • The administration leveraged the law for fast-track removals, bypassing immigration courts.
  • Some Venezuelans were deported to El Salvador and held in the notorious Secot prison until a recent prisoner swap.

2. Why the Trump Administration Used this Approach

• Need for Speed over Due Process:
  • Traditional deportation takes years; the Alien Enemies Act streamlines removal by limiting court proceedings.
  • Quote [03:14] - Ximena Bustillo:

    "The deportation process can be really slow, especially for people who have been in the country for more than two years... Alien Enemies act actually allows for a streamlined process where you don’t necessarily have a right to have your case heard..."

3. The 5th Circuit Court Ruling

• Decision Details:
  • The court blocked the use of the Alien Enemies Act for deportations in Texas, Mississippi, and Louisiana.
  • This challenges the legality of using the act for domestic immigration enforcement.
• Implications:
  • Raises broad questions about the scope of executive authority in immigration.
  • The Supreme Court has so far avoided ruling directly on the merits of the act as used by Trump.
  • Quote [04:21] - Ximena Bustillo:

    "A panel in the 5th Circuit decided to block the Trump administration from using the Alien Enemies act in order to deport Venezuelans within its jurisdiction. This is a really big deal..."

4. Potential Supreme Court Involvement

• Outcome if Upheld:
  • If SCOTUS sides with Trump, it could set precedent for designating other groups for swift deportation under the same act.
  • Quote [04:29] - Frank Ordonez:

    "It would essentially allow the administration to do this for other groups. Once you designate one group...there's no question that the Trump administration can do this with others."

  • Trump wants the court fight—he sees the current composition as favorable.

5. Use of Emergency Powers for Immigration

• Pattern in Trump's Re-Election:
  • Trump is repeatedly using emergency declarations (e.g., border emergency to deploy military, National Guard to cities) to exercise executive authority over immigration.
  • This is part of a broader trend of expanding executive power.

6. Revamp of Immigration Judiciary

• Firing of Immigration Judges:
  • Over 100 federal immigration judges have resigned or been fired to shrink the federal workforce.
  • Quote [09:22] - Ximena Bustillo:

    "About 100 of them have either resigned voluntarily or been fired as a part of a broader effort to reduce the size of the federal government."

• Replacement with Military Lawyers (JAGs):
  • 600 military lawyers approved for temporary roles as immigration judges; ~150 starting immediately.
  • They lack detailed experience in immigration law, and details of their deployment are short-term (~176 days).
  • Raises concerns about independence, potential for bias, and process integrity.
  • Quote [11:04] - Ximena Bustillo:

    "What is completely new and in a way unprecedented is bringing on, as you mentioned, this third agency adjudicators into these roles. And the position is temporary..."

7. Erosion of Judicial Independence

• Dissolution of Barriers:
  • Traditionally, immigration courts (DOJ) are separate from enforcement agencies to protect due process.
  • The administration's approach blurs that line, especially by substituting military personnel for civilian judges.
  • Quote [13:07] - Ximena Bustillo:

    "We're seeing a continued blurred line between the roles of immigration judges and the enforcers coming out of the Department of Homeland Security, or as Franco explained, other security forces such as the military..."

• Broader Trend:
  • The administration is centralizing direction and aligning roles under the executive branch, reducing independence.

8. Broader Strategy: Enforcement Over Adjudication

• Focus on Arrests and Speedy Removal:

  • The main goal is rapid deportation, not careful case-by-case review.
  • Immigration backlogs are being addressed by flooding courts with temporary, inexperienced personnel.
  • Raises significant concerns about fairness for immigrants.
  • Quote [15:11] - Ximena Bustillo:

    "The main focus is enforcement. It's not necessarily adjudicating through due process...The focus here is on arrests, on detention, and on removing those people as quickly as possible..."

• Executive Power as the Larger Theme:

  • The episode repeatedly notes Trump’s use of institutional levers and military roles in immigration—a marked shift from past administrations.
  • Quote [16:23] - Frank Ordonez:

    "On the one hand, it's about deporting as many people and as quickly as possible. On the other hand, I think the big picture issue is this is about executive power..."

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Notable Quotes & Memorable Moments

• "It's basically an 18th century wartime law, very obscure, called the Alien Enemies act to quickly deport large group of Venezuelans without regular due process."
  — Frank Ordonez [01:23]
• "A panel in the 5th Circuit decided to block the Trump administration from using the Alien Enemies act...This is a really big deal..."
  — Ximena Bustillo [04:21]
• "President Trump has taken a very much of a slash and burn approach to taking out the federal workforce and replacing them with individuals who are more in line with the president’s agenda..."
  — Frank Ordonez [11:44]
• "We're seeing a continued blurred line between the roles of immigration judges and the enforcers coming out of the Department of Homeland Security…or the military..."
  — Ximena Bustillo [13:07]

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Timestamps for Major Segments

• 00:56 – 01:09: Episode intro and topic announcement
• 01:09 – 02:19: Explanation of Trump’s attempted use of the Alien Enemies Act
• 03:06 – 03:41: Rationale for using the Act for enforcement
• 03:41 – 04:21: Details on the 5th Circuit Court's decision
• 04:21 – 05:31: Supreme Court implications and administration strategy
• 09:11 – 10:13: Firing of immigration judges and JAG replacement
• 10:13 – 11:42: Unprecedented use of military lawyers as judges
• 13:07 – 15:11: Blurring lines between enforcement and adjudication
• 15:11 – 16:56: Discussion of the administration’s big-picture enforcement strategy

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Final Thoughts

This episode of The NPR Politics Podcast provides a thorough breakdown of a pivotal legal and policy development in US immigration enforcement under President Trump. It explains not just the legal maneuverings, but the broader context of executive overreach, erosion of due process, and the use of military authority in civilian legal matters. The reporting paints a portrait of a presidency intent on maximizing speed and enforcement at the expense of traditional checks and procedural fairness in immigration law.

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Transcript

[Ximena Bustillo]

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[Sarah McCammon]

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[Ximena Bustillo]

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[Sarah McCammon]

Three times a week, Life Kit brings you a fresh set of solutions to help you tackle topics big and small, from how to save money on groceries to how to bring the house down at karaoke. You know, human stuff. Listen to the Life Kit podcast from npr. Presentado por me, Mariel Segarra.

[Ximena Bustillo]

Hi, this is Eva from Long Island. And for the first time in three years of planting milkweed, I am counting all the egg and baby caterpillars that.

[Sarah McCammon]

One day will become monarch butterflies. This podcast was recorded at 12:40pm Eastern Time on Thursday, September 4, 2025.

[Ximena Bustillo]

Things may have changed by the time you hear this, but hopefully I'll be counting chrysalises and butterflies soon and wishing them well on their journey.

[Sarah McCammon]

Enjoy the show. Aw, fly little butterflies.

[Frank Ordonez]

I think monarch butterflies are very beautiful.

[Ximena Bustillo]

I dream to see the migration.

[Sarah McCammon]

Hey there. It's the NPR Politics podcast. I'm Sarah McCammon. I cover politics.

[Ximena Bustillo]

I'm Ximena Bustillo and I cover immigration policy.

[Frank Ordonez]

And I'm Frank Ordonez. I cover the White House.

[Sarah McCammon]

Today on the podcast, a court has ruled that the Trump administration cannot use the Alien Enemies act as a justification to deport Venezuelan immigrants. But let's back up for a second, Franco. Just remind us, if you would, what President Trump was trying to do when he invoked this act.

[Frank Ordonez]

I mean, it's basically a key part of his effort to carry out his promise of a mass deportation program that he talked about since his campaign. It's basically an 18th century wartime law, very obscure, called the Alien Enemies act to quickly deport large group of Venezuelans without regular due process. It's actually a law that was used to justify the incarceration of Japanese Americans as well as Italian and German immigrants in World War II. And now Trump is trying to use it to target Venezuelan street game called Trende Aragua. He claims that the gang is actually doing this irregular warfare in the United States at the direction of the Maduro regime, which of course is the government of Venezuelan President Nicolas Maduro. But that claim of an invasion has actually been pushed back by the courts.

[Sarah McCammon]

Yeah, we've talked a lot about this broader immigration crackdown, but the invocation of this law is specifically focused on this Venezuelan gang.

[Ximena Bustillo]

Yes. And so practically speaking, what that has looked like is right after he invoked the Alien Enemies act, we saw about three planning planes leave the United States that carried over 200 men, majority of those being deported through the use of the Alien Enemies act, they're from Venezuela. But they were instead sent to El Salvador, a notorious prison known as Secot, where they remained for several weeks until a prisoner swap that recently occurred. But we have seen the Trump administration use the Alien Enemies act to swiftly deport people.

[Sarah McCammon]

Why would the Trump administration want to use this act for immigration enforcement rather than going through a more traditional means of enforcing immigration law?

[Ximena Bustillo]

The deportation process can be really slow, especially for people who have been in the country for more than two years and are not necessarily encountered at the border. It can just take years for someone to have their case moved through immigration court. And so the Alien Enemies act actually allows for a streamlined process where you don't necessarily have a right to have your case heard in immigration court, and you can be swiftly removed from the United States.

[Sarah McCammon]

And so this ruling on Tuesday from a 5th Circuit panel, what did the court say?

[Ximena Bustillo]

A panel in the 5th Circuit decided to block the Trump administration from using the Alien Enemies act in order to deport Venezuelans within its jurisdiction. So this is now effective in Texas, Mississippi, and Louisiana. And effectively, that means that the Trump administration cannot use that act as the basis for removing someone from the country. This is a really big deal, in part because it is bringing into question whether or not the use of this act for domestic immigration enforcement in this way is even legal at all.

[Sarah McCammon]

So the court said no, I assume the administration is likely to appeal that. If the Supreme Court ultimately weighs in here in Trump's favor, what could that mean?

[Frank Ordonez]

I mean, that would be huge. I mean, it would be a gigantic step. And let's remember that the Supreme Court did already rule in favor of the Trump administration a piece of this, allowing it to continue soon after the administration invoked this proclamation. But if the Supreme Court is able to do this, it would essentially allow the administration to do this for other groups. Once you designate one group as part of the Alien Enemies act, there's no question that the Trump administration can do this with others. And the Trump administration has made that very clear that he is likely to do that, considering the number of groups that he has claimed are invading the United States. I mean, this is a fight that the president. I would argue that the president wants to have. They want to go at the Supreme Court. He wants this in the Supreme Court. And he has the most favorable Supreme Court that President Trump could hope for over the last few decades, considering three of the justices are ones that he appointed.

[Ximena Bustillo]

The question of the use of the Alien Enemies act has floated its way up to the Supreme Court a few other times, but they have not ruled directly on the question of if the Trump administration can use the Alien Enemies act in this way. They've issued other decisions, mostly related to how much notice someone was given before they were deported from the country or removed from the country through the use of the Alien Enemies Act. But they've completely stayed away from the issue of the use of the act and its merits.

[Sarah McCammon]

Right. They've weighed in on these kind of technicalities, smaller issues, but not so much on the fundamental question.

[Ximena Bustillo]

Totally.

[Sarah McCammon]

You know, what do you make of the imminent administration's tactics here? I mean, using emergency declarations is something the administration has done in other areas since Trump was reelected. What's the objective?

[Frank Ordonez]

I mean, I think it's about speed and it's about, you know, knocking something out with as big of a hammer as possible. President Trump has used this, you know, emergency declaration for so many issues. He's declared an emergency on the border in order to send the military to the border to help with border enforcement. He has declared an emergency in Los Angeles to send the National Guard there to quell protests about immigration. He's also used these emergency powers to bring the National Guard here to Washington, D.C. and he's also threatening to use the National Guard in Chicago under those same type of powers. So this is something that the administration does very frequently. And that's also one of the reasons why this decision in the Supreme Court is going to be so important because it could have implications, implications on far reaching implications, particularly on immigration in other areas. But extending that to question how much authority does this executive branch have? Because there's no question that Trump has tried to stretch his executive powers in so many ways, but none other like immigration, especially on immigration.

[Sarah McCammon]

All right, it's time for a quick break. We'll have more in just a moment. A lot of short daily news podcasts focus on just one story. But right now you probably need on up first from NPR, we bring you three of the world's top headlines every day in under 15 minutes. Because no one story can capture all that's happening in this big crazy world of ours on any given morning. Listen now to the up first podcast from npr.

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[Ximena Bustillo]

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Yeah, Milk boy. On the latest Planet Money podcast, the strange economics of Million Dooll Domain name.

[Sarah McCammon]

Hey, it's Rachel Martin. I'm the host of Wildcard from npr. For a lot of my years as a radio host, silence sort of made me nervous. That pause before an answer because you don't know what's going on on the other side of the mic. But these days, I love it.

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Whoa. Give me a minute.

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[Sarah McCammon]

And we're back. Jimene, you've reported that the administration is calling up military lawyers. These are the people known as jags, to help with immigration court proceedings. What's happening there?

[Ximena Bustillo]

So over the past few months, we have seen over 100 immigration judges. These are administrative judges that work under the Department of Justice in the Executive Office for Immigration Review. This is what houses immigration courts. About 100 of them have either resigned voluntarily or been fired as a part of a broader effort to reduce the size of the federal government. What we have recently heard is that the Pentagon has approved 600 military lawyers to be authorized to work for the DOJ and that EOIR department as temporary immigration judges, with about 150 of them starting as soon as this week. So it definitely seems like this is an effort to replace the number of judges that have, since over the course of the start of this administration, been removed.

[Sarah McCammon]

So the administration has been getting rid of immigration judges. They're replacing them with lawyers from a totally different department. Right. Defense JAG lawyers. Do you have a sense of why the original immigration judges were fired, those who were let go?

[Ximena Bustillo]

It's really tough to find patterns. You know, I've spoken a lot with the union that represents immigration judges. I've been speaking with a lot of former immigration judges myself. And there isn't necessarily a clear cut pattern of its only individuals that used to be immigration attorneys. You know, we have seen veterans be dismissed from the department. We have seen former DHS prosecutors from varying administrations be dismissed from the department. Judges with varying levels of denial for asylum have been dismissed by the department, varying levels of experience, some who deny.

[Sarah McCammon]

Asylum a lot and some who don't, definitely.

[Ximena Bustillo]

And so there hasn't been a clear cut pattern. But what is completely new and in a way unprecedented is bringing on, as you mentioned, this third agency adjudicators into these roles. And the position is temporary, I think is particularly important. So I received an email that was sent to those who are Navy Jags, and it only asked for them to volunteer for 176 days, which is a really short detail. And, you know, immigration law is really complicated. They're going to be coming in for a short amount of time. They have no experience in this. So there's a lot of questions about how they're supposed to fulfill these roles.

[Sarah McCammon]

What's the White House trying to achieve here? Franco?

[Frank Ordonez]

You know, just speaking about the potential reasons for cutting all these people. I mean, this administration has taken a very much of a slash and burn approach to taking out the federal workforce and replacing them with individuals who are more in line with the president's agenda and under the president's direction. I mean, these are JAG lawyers who are under the purview of the administration. There's going to be a lot of pressure on them from the doj, from the attorney General, to kind of carry out the agenda or the objectives of the President of the United States. And we all know what those are when it comes to immigration. It's to speed up deportations. And a big part of this, I think, is it is another example of the use of the military on immigration enforcement. I mean, we're seeing that over and over again. And President Trump has made very clear that he wants to use the military and more examples like this.

[Sarah McCammon]

I mean, presumably, Jimena, these judges coming in, jags or otherwise, are going to know the history here. They're going to know that they're in many cases replacing judges who were let go. Where does that leave them in terms of the ability to make decisions with a certain level of independence?

[Ximena Bustillo]

Experts have told me that the reason that immigration courts are in the Justice Department and not in the Homeland Security Department is to at least create a separation of influence so that the enforcers, or like the police and the folks that are doing the arrests and the detention are not working under the exact same direction as the ones who are supposed to be fairly adjudicating and weighing cases that may align with the Department of Homeland Security's goals may not. And what we're seeing right now is those lines are getting really blurred. Obviously, both departments are under the executive branch, ultimately the president, but we're seeing a continued blurred line between the roles of immigration judges and the enforcers coming out of the Department of Homeland Security, or as Franco explained, other security forces such as the military, which have been really involved in assisting DHS personnel and officers as they're carrying out this enforcement.

[Frank Ordonez]

I just want to echo that. I kind of find it's more than just blurring the lines of independence between the executive branch and the Justice Department. I mean, President Trump has taken so many steps to kind of just almost not quite erase them, but very much kind of clear so much of that wall away. I mean, Pam Bondi, the attorney general, is very much right there doing what the president is seeking, following within that agenda. And I think that is very clear. And I think this is in line with that shift in the direction of this Department of Justice, which is very different than past historical ones.

[Sarah McCammon]

We've talked about the administration's willingness to invoke emergency powers. We've talked about the need for speed and the desire to move this process along, the deportation and enforcement process. What else does this latest move, bringing in these JAG lawyers to serve as immigration judges, what else does it tell us about the larger picture here and where the administration may be headed with its enforcement strategy?

[Ximena Bustillo]

I think the main focus is enforcement. It's not necessarily adjudicating through due process these cases to make sure that each individual person gets a chance to argue why they should get to stay in the United States, as has been practiced for decades. The focus here is on arrests, on detention, and on removing those people as quickly as possible. We are seeing that there is a nearly 4 million case backlog in immigration courts. Bringing in immigration lawyers on a temporary basis to essentially create a giant influx in the amount of people that can review cases will allow for more cases to be reviewed. Immigration advocates tell me that they might not be reviewed appropriately. They might be quickly dismissed. It's just simply going to continue to streamline people's deportation cases. And that's separate of everything else we've been seeing, with arrests in courts, additional personnel and security personnel, as Franco has talked about in various major cities. You know, what we are really just seeing is a really large security and law enforcement presence. And that is the show that this administration wants to put on and is fulfilling by doing this.

[Frank Ordonez]

Yeah, I mean, I think it's. On the one hand, it's about deporting as many people and as quickly as possible. On the other hand, I think the big picture issue is this is about executive power and another example, again, of using the different levers that the administration is using, using the military to do immigration enforcement and executing powers that past presidents haven't done or doing it in a new way, in a much more forceful way, much like we have been seeing this president do on so many other issues.

[Sarah McCammon]

All right. We'll leave it there for today. I'm Sarah McCammon. I cover politics.

[Ximena Bustillo]

I'm Ximena Bustillo, and I cover immigration policy.

[Frank Ordonez]

And I'm Frank Ordonez. I cover the White House.

[Sarah McCammon]

And thank you for listening to the NPR Politics podcast. This message comes from NPR sponsor Shopify. Start selling with Shopify today. Whether you're a garage entrepreneur or IPO ready, Shopify is the only tool you need to start, run and grow your business without the struggle. Go to shopify.com NPR on this week's Wildcard podcast, author Ocean Vuong says we need to reframe how we think about trauma.

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The trauma comes on one side of a coin that also has strength on it.

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Find that Wildcard conversation on the NPR app, YouTube or wherever you get your podcast. On the TED Radio Hour podcast, tech CEO Victor Ripar Belli says that in the future, AI avatars will be teaching our kids.

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I promise I got some interesting stuff and it's going to take less than two minutes for you.

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