Harvard Professor Questions Trump’s Alien Enemies Act Application at HLS Talk

Harvard Law School professor W. Neil Eggleston — former President Barack Obama’s White House Counsel and a member of President Bill Clinton’s Counsel Office — discussed President Donald Trump’s executive authority to trigger the Alien Enemies Act without following due process at a Tuesday lunch talk.

Eggleston said that Trump’s use of executive authority to take liberties with the Alien Enemies Act in fast-tracking deportation could violate due process, focusing on Trump’s recent targeting of Venezuelan gang Tren de Aragua.

Tuesday’s event, which was hosted by the student Law and Democracy Forum, featured a moderated discussion about presidential authority on foreign affairs followed by a question-and-answer session.

The Alien Enemies Act of 1798, which originated from the threat of war with France, has only been invoked three times — the War of 1812, World War I, and World War II. The measure has never been used in peacetime, though the Act’s language does allow for its invocation under the threat of “invasion or predatory incursion” from foreign countries.

“There are a couple really significant presidential power, congressional power issues that are percolating along now as a result of the second Trump administration,” Eggeleston said in an interview with The Crimson.

“I think it’s one of the significant issues,” he added, referring to Trump’s use of executive authority to apply the Alien Enemies Act in peacetime.

In the last month, Trump has deported alleged members of TDA, a gang allegedly affiliated with the Venezuelan federal government, for engaging in “irregular warfare” against the U.S. In New York, Florida, Texas, and Illinois, members of TDA have been charged in crimes related to sex trafficking, murder, and kidnapping.

Where things become difficult, Eggleston said, is determining whether the gang’s crimes can be considered a “war” against the U.S. government, whether TDA is a part of the Venezuelan government, and whether an individual is a member of the gang or not.

“Those are just three issues in courts we’re struggling with,” Eggleston said.

Eggleston went on to explain that Trump’s invocation of the act surfaced questions about due process and whether individuals who are unable to be proven TDA members should be subject to deportation under the act. But the Trump administration seems to be taking action before such due process questions can be considered, according to Eggleston.

“The next thing that happens is they’re on a plane, on the way to El Salvador,” he said.

He pointed to another complexity in the TDA case — the Venezuelan immigrants are not being deported back to their home country, but instead to an El Salvadoran prison. Because the individuals have not yet been convicted of a crime, Eggleston said, deportation to El Salvador could be considered a violation of American immigration standards.

Eggleston said that the essence of this case is the right to “habeas corpus,” which refers to the right for detained immigrants to appear before a judge and which Eggleston said Trump seems quick to overlook.

“I just think it’s unlikely that the Supreme Court is going to determine that the President, on his own, can name someone a member of TDA,” Eggleston said.

—Staff writer Caroline G. Hennigan can be reached at caroline.hennigan@thecrimson.com. Follow her on X @cghennigan.