Can The Courts Save US?

By Felicia J. Persaud

News Americas, NEW YORK, NY, Fri. April 4, 2025: It’s been less than a month since, US President Donald Trump invoked the Alien Enemies Act of 1798, issuing a sweeping proclamation to detain and deport Venezuelan immigrants allegedly linked to the criminal gang Tren de Aragua.

A second group of 2,000 detainees are moved overnight to the mega-prison Terrorist Confinement Centre (CECOT)on March 15, 2023 in Tecoluca, El Salvador. Since president Bukele announced a state of exception in March 2022, over 62,000 suspected gang members have been arrested. Human Rights organizations denounce abuses and due process violations. El Salvador has one of highest crime rates in Latin America. A first group of detainees had been moved to the prison on February 26. (Photo by Handout/Presidencia El Salvador via Getty Images )

Let that sink in: a centuries-old wartime law is now being dusted off and weaponized for immigration enforcement in peacetime. Yes, Tren de Aragua is a real and dangerous gang. Yes, the U.S. president has authority under immigration law to deport gang members who pose a threat to communities. But that’s not what’s at play here. According to Katherine Yon Ebright, counsel with the Liberty and National Security Program at NYU’s Brennan Center for Justice, this move has far less to do with fighting crime and far more to do with bypassing due process altogether.

As Ebright puts it, this is a blatant attempt to dispense with the burden of evidence and sidestep the courts. The goal? Sweeping detentions and deportations of Venezuelans – based on ancestry, not proven gang affiliations. Let’s call it what it is: a dangerous and potentially unconstitutional power grab.

The Alien Enemies Act, a relic from the 18th century, was crafted in a time of war and intended for use only during declared wars or armed attacks by foreign governments. It was last used in World War II, when the U.S. interned tens of thousands of Japanese, German, and Italian immigrants – many of whom were innocent, and some even U.S. citizens – based purely on ancestry and paranoia.

Now, in 2025, we are watching history dangerously repeat itself. The ACLU and Democracy Forward have already taken the Trump administration to court, citing the imminent risk of removal for five Venezuelan men detained in Texas. A federal judge quickly halted the deportations – but not before the administration doubled down, appealing the ruling and signaling its intent to push forward.

Meanwhile, in an unsettling parallel, the administration is applauding El Salvador’s president, Nayib Bukele, for his mass incarceration of more than 84,000 suspected gang members – often without due process – and just cut a deal with his government. Let’s be honest: this isn’t about national security. The U.S. is not at war. There is no declared invasion. Trump is simply playing politics with immigration – again – using the law as a tool to consolidate power and spread fear, particularly among Latino and immigrant communities.

What’s more disturbing is how limited the legal system has become in protecting against such abuses. As Georgetown law professor Stephen Vladeck noted in a New York Times guest essay recently, even if courts rule this action unconstitutional, there’s often little recourse. Due to sovereign immunity, suing the federal government is nearly impossible unless Congress explicitly allows it – and those permissions are rare.
Even the 1971 precedent allowing victims to sue individual federal officers for constitutional violations has been systematically gutted by the Supreme Court over the past eight years. So where does that leave us?

If the courts do not act swiftly and decisively, this administration may get away with mass removals, without evidence, hearings, or accountability. And if it happens to Venezuelans today, who’s next tomorrow? Yes, the federal courts have so far done a commendable job of reining in executive overreach. But the judiciary alone cannot save us. Real, lasting protection lies in legislative action. Congress must step up – not just with oversight, but with new laws that make it harder for any president to weaponize immigration policy and violate civil liberties with impunity.

And we, the people, must step up too. Through our voices, our votes, and our vigilance. The rule of law in America must never bend to the will of a single man or administration. The Constitution begins with a powerful truth: it is “We The People” who hold the ultimate authority.

EDITOR’S NOTE: Felicia J. Persaud is the publisher of NewsAmericasNow.com, a daily news outlet focused on positive news about Black immigrant communities from the Caribbean and Latin America.