UNITED STATES — In a new analysis published last Wednesday on Lawfare, attorney Raphael Goldman examined the legality of President Trump’s use of the Alien Enemies Act (AEA) to deport Venezuelan nationals and detain them in El Salvador, raising serious constitutional concerns.
According to the article, Trump invoked wartime powers under the AEA in March to declare that the Tren de Aragua (TdA), a Venezuelan gang, had invaded the United States.
Goldman wrote that the federal government subsequently began deporting Venezuelan nationals believed to be members of TdA.
These deportations triggered multiple lawsuits, many of which challenge the president’s authority to invoke the AEA outside of wartime and to deport individuals without any due process.
Goldman noted that the Supreme Court has intervened several times, most recently requiring the government to provide more than 24 hours’ notice before removing deportees so that they can challenge their deportation under the AEA.
His article focused on the fate of those deported, stating they were sent to El Salvador’s notorious prison, the Centro de Confinamiento del Terrorismo (CECOT).
The article added that their detention was reportedly carried out under an agreement between the U.S. and Salvadoran governments, under which “detention would last for at least a year, and potentially indefinitely.”
Goldman warned that the United States may expand this approach to include other countries and other alleged gang members.
“In other words, the government effectively sentenced these men to prison after removal—a criminal punishment,” Goldman wrote.
“Yet criminal punishment is not permissible under the U.S. Constitution unless the government has first convicted the defendant of a crime (with all the due process protections that attend a criminal conviction, including a jury trial), the punishment is authorized by a statute enacted by Congress, and the statute uses words that provide fair warning of what conduct is subject to punishment. None of that happened here,” he added.
Goldman also noted that some CECOT detainees were recently transferred to Venezuela in a “prisoner swap.” The article stated that it remains unclear how the swap will affect ongoing lawsuits filed by individuals deported under the AEA.
He continued, “Given the Trump administration’s evident interest in sending alleged gang members to foreign prisons, it remains vital to consider whether and under what conditions the U.S. government is entitled to send people to be detained in other countries.”
The article delved into the text of the AEA, arguing that it does not authorize post-removal detention and grants only limited authority to the president.
Goldman described the imprisonment in CECOT as “punishment,” reiterating that under the U.S. Constitution, punishment is only permissible after a conviction for a specific crime.
He added that deportees must still be afforded basic rights. “The Supreme Court has made abundantly clear that all persons present in the United States—including undocumented immigrants—are entitled to basic constitutional protections enshrined in the Bill of Rights,” Goldman wrote.
He also argued that the administration’s approach violates the separation of powers. Citing United States v. Hudson, Goldman noted that before the government may impose criminal punishment, “[t]he legislative authority of the Union must first make [the] act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.”
That holding, he wrote, implies the executive branch cannot unilaterally condemn alleged TdA members; congressional authorization would be necessary.
“It is up to the courts to directly address, and clearly condemn, the practice of condemning U.S. residents without due process to do time in a foreign prison,” Goldman concluded.
