Donald J. Trump has been falsely equating migration with invasion since he announced his first presidential campaign on June 16, 2015. “When Mexico sends its people, they’re not sending their best,” he said, characterizing migrants not as individuals making difficult decisions and often perilous journeys but as a malevolent force controlled by foreign governments.
Mr. Trump escalated his rhetoric when running for president in 2024, promising at one rally that “I will liberate Wisconsin from the mass migrant invasion” and “We’re going to liberate the country”—again, portraying immigrants seeking a better life for themselves and often fleeing persecution and war as a menace, despite the fact that immigrants have always, and still do, contribute to American prosperity.
On the first day of his current term, Mr. Trump issued a presidential action titled “Protecting the American People Against Invasion,” referring to undocumented immigrants who “have abused the generosity of the American people.” This language recalls attitudes toward Irish immigrants to the United States during the 19th century, often depicted as uncivilized and insufficiently appreciative of American customs and values.
And last week, Mr. Trump issued a more specific proclamation, the “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua,” to justify the deportation of more than 200 Venezuelan migrants to a “mega prison” known for its harsh conditions in El Salvador. The Alien Enemies Act of 1798 has been used only three times before, always against nations at war with the United States. In the last instance, during World War II, it was used to move thousands of noncitizens of Japanese, German and Italian ancestry (along with thousands of citizens) into internment camps. This was a shameful chapter of American history, and President Ronald Reagan formally apologized in 1988 for the detainment of individuals with Japanese ancestry “without trial, without jury.”
Mr. Trump’s contention that immigrants are “invading” the United States is an opportunistic rallying cry to set himself up as a crusading savior, rather than a serious claim about facts. When such a claim moves from the realm of malicious rhetoric to a legal justification, as it has with the invocation of the Alien Enemies Act, it is subject not only to moral and political critique but also to the review of the courts.
First, there is the question of whether the Alien Enemies Act can legitimately be used in this case. Mr. Trump made a declaration that Tren de Aragua, a Venezuelan gang associated with sex trafficking, is “perpetrating, attempting, and threatening an invasion or predatory incursion,” which is required in order to invoke the Alien Enemies Act outside of a formally declared war. But both the president’s claim that Tren de Aragua is sufficiently similar to, or acting in concert with, “a foreign nation or government” and that its actions constitute an invasion are questionable at best, and there is strong reason to believe that these determinations are pretexts for accessing more expansive deportation powers than would otherwise be available.
Second, even if a court finds that the Alien Enemies Act properly applies to this case, there is a due process question about the people being targeted. The Trump administration has immediately deported people as members of Tren de Aragua, but it has not revealed how it has made this determination (a court document filed on March 17 by an Immigration and Customs Enforcement official conceded that “many” of the deportees had no criminal records in the United States). Are they actually gang members? The five plaintiffs in the case immediately before the court assert that they are not, with one arguing that he has been misidentified due to nothing more than tattoos and others arguing that they themselves are victims of, and under threat from, Tren de Aragua.
If these two questions were the only matter under dispute, this would be a contentious but relatively normal court proceeding, but the Trump administration has gone far beyond defending the legitimacy of its expanded powers of deportation. On March 15, a federal judge, James E. Boasberg, issued an order halting the deportation of the Venezuelan migrants, including requiring any planes in flight to return, but the Trump administration allowed the planes to continue to El Salvador. (“Oopsie... Too late,” wrote the president of El Salvador, Nayib Bukele, on social media in response to the judge’s order. Secretary of State Marco Rubio later reposted this gibe on his personal account.)
Such an order does not resolve the substantive legal questions of the case. Instead, it is meant to preserve the status quo so that the court has time to deliberate before any of the parties involved are placed beyond its jurisdiction or irreparably harmed. Most of the legal wrangling in the last few days has involved the court attempting to determine—and the Trump administration refusing to clearly explain—the exact status of the flights relative to the judge’s order, first as given orally and then as published in the court’s docket.
There is evidence from aviation records that the administration defied the court order. That defiance, along with the administration’s refusal to honor the court’s repeated orders demanding information about the flights, pushes the United States toward a constitutional crisis, with the executive branch rejecting the authority of a court. The administration stonewalled the court for several days, and finally submitted a brief response under seal today, saying that the government was still deliberating over whether to assert the state secrets privilege in order to justify its refusal to provide information to the court. In an order issued this afternoon, Judge Boasberg described that six-paragraph filing as “woefully insufficient,” and set a deadline of March 25 for the government to declare whether or not it is invoking that privilege and to explain why the administration has not returned the deported individuals as required by his original temporary restraining order.
A rebuke from the chief justice
At the same time that the legal dispute over compliance with the judge’s order was unfolding, Mr. Trump also made what could be a contained dispute within a single case much larger, as he took to social media to criticize Judge Boasberg: “This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President - He didn’t WIN the popular VOTE (by a lot!), he. . . should be IMPEACHED!!!” (Judge Boasberg was originally appointed by George W. Bush to a lower court; when Mr. Obama nominated him to his current position in 2011, he was confirmed by the Senate in a 96-0 vote. During Mr. Trump’s first term, he rejected an advocacy group’s effort to obtain his tax returns.)
The same day, John Roberts, chief justice of the Supreme Court, issued a rare public statement that could be seen as a rebuke of a sitting U.S. president, though it did not mention Mr. Trump by name. “For more than two centuries,” the chief justice said, “it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.” A Supreme Court spokesperson said that Mr. Roberts’s statement was responding to press inquiries.
The contrast between the two statements could not be more pronounced: one on social media, the other issued through a spokesperson; one reveling in ad hominem attacks, the other not even naming the person to whom it is responding; one deceptively claiming a large popular mandate, the other calmly restating long-established norms for the proper operation of checks and balances.
Many who are frustrated or frightened by the Trump administration’s rejection of any constraints on executive power may have wished for a stronger response by the chief justice. But in addition to standing in contrast to Mr. Trump’s overheated rhetoric, the chief justice’s restraint also demonstrates the challenge of responding to attempts to destabilize the constitutional order. Those who do not value the constitutional system, or actively seek to undermine it, may batter its supports without a care, while those who seek to defend it must work to keep its structure stable even as its opponents exploit that stability.
Mr. Trump’s basic assertion, which falls short of being a proper argument, is that since he was elected by depicting unauthorized immigrants as enemies, he should have free rein to deport them as quickly as possible, and that any attempt to constrain or limit his efforts to do so is an assault on the popular will. But this imagines him as some kind of monarch by acclamation, rather than recognizing him as the elected president within a constitutional system of balanced powers.
Political leaders from both parties should publicly align themselves with the chief justice’s calm and measured restatement of basic constitutional principles. Sadly, at least one Republican in the House has already filed articles of impeachment against Judge Boasberg. Americans should demand their elected representatives, especially in the Republican Party, reject this assault on constitutional norms, and the chief justice should consider making an explicit call on congressional leaders of both parties to reject the use of impeachment as a response to judicial review. That call could be made in a balanced and nonpartisan fashion, and the response to it would make clear how much of a crisis the country is facing.
