Maryland Criminal & Immigration Lawyer Blog
One of the greatest fears non-residents in this country have is deportation. According to a new American Civil Liberties Union publication, a possible future Trump presidency could raise the number of deportations dramatically. According to the ACLU, one of the weapons a potential future Trump Administration might try to use is a federal law enacted in 1798. Regardless of the presidential election’s outcome, you need to be sure you have the right Maryland deportation defense lawyer by your side if you are facing a deportation action.
In 1798, the U.S. Congress passed the Alien Enemies Act (AEA). That law says that the president has the authority to detain and deport anyone who is a native or a citizen of an enemy nation. At the word “enemy” implies, the act limits the president’s detention and deportation authority to times of when the U.S. faces specific threats.
Those threats include a declared war or invasion or “predatory incursion.” (“Predatory incursion” essentially means a raid or a surprise attack.) The U.S. has used the law before — against the British during the War of 1812 and against Germans in World War I, for example.
One key thing to understand is that only invasions or raids by foreign countries trigger the law. Given those terms, why should immigrants be concerned?
According to the ACLU, the language of anti-immigration advocates reveals much. The ACLU highlighted how “invasion rhetoric has been a lynchpin of Trump’s presidential campaign.” This includes the nominee claiming “that the ‘greatest invasion in history’” was happening at the southern U.S. border with Mexico.” Additionally, Texas Governor Greg Abbott has “repeatedly claimed an invasion at the U.S.-Mexico border to show just cause for the entirety of Operation Lone Star, an anti-immigrant border enforcement scheme that allows for the arrest of U.S. citizens and others far from the southwest border.”
Previous presidential practices as well as rulings from the courts make it clear the president’s powers under the law are wartime powers. Nevertheless, non-residents still have reason for concern. As the Brennan Center pointed out, President Wilson used AEA powers until 1920 and President Truman used them through 1948. The Supreme Court upheld Truman’s actions, saying that it was non the courts’ place to overrule presidential decisions about when “active hostilities” had (or had not) ended.
Another possible problem the Brennan Center spotlighted is a legal doctrine that courts use to avoid deciding disputes. The “political question” doctrine says that if a case presents a question that is political, not legal, then the courts may not resolve that dispute. Instead, the legislative and executive branches of the government may act as they wish.
In the 1990s, the courts used this doctrine to resolve a case about immigration (although not one that discussed the AEA.) The State of California sued the federal government for allegedly failing to do their duty with regard to keeping out undocumented immigrants. The courts said that California’s complaint was a political question, not a legal one, and dismissed the case, allowing the Clinton Administration’s policy toward immigrants to continue.
As the Brennan Center speculated, a president theoretically could argue that a cartel was acting as a “de facto” government, was behind the influx of immigrants, invoke the AEA, and then argue that the courts had no power to stop him because challenges to his policy were “political questions” upon which courts cannot rule.
The concerns the ACLU and the Brennan Center raise are merely speculative at this point, but they could become much more real in the new year. They highlight how important it is for non-residents to keep their guard up and keep a skilled attorney close by. For answers to your deportation-related questions, get in touch with the Maryland deportation defense attorneys at Anthony A. Fatemi, LLC can help. Contact us today at 301-519-2801 or via our online form right away to schedule your confidential consultation.