Executive Power

Jacob Sullum | 1.1.2026 3:45 PM

In December, CBS News Editor in Chief Bari Weiss provoked internal and external criticism by postponing a 60 Minutes segment about President Donald Trump's deportation of suspected Venezuelan gang members to Centro de Confinamiento del Terrorismo (CECOT), a notorious prison in El Salvador. "We need to do a better job of explaining the legal rationale by which the administration detained and deported these 252 Venezuelans to CECOT," Weiss wrote in a memo that elucidated her reservations about the story. "It's not as simple as Trump invoking the Alien Enemies Act [AEA] and being able to deport them immediately. And that isn't the administration's argument."

Weiss noted that the government's lawyers had "argued in court that detainees are entitled to 'judicial review.'" She said "we should explain this, with a voice arguing that Trump is exceeding his authority under the [AEA], and another arguing that he's operating within the bounds of his authority." She thought the story should make it clear that "there's a genuine debate here."

That seemingly even-handed summary glossed over several important aspects of these deportations. First, the men at the center of the 60 Minutes segment were in fact shipped off to CECOT without any sort of judicial review. Second, even after the Supreme Court ruled that alleged "alien enemies" have a due process right to challenge their removal via habeas corpus petitions, the administration made that option nearly impossible to pursue in practice, as the Court subsequently recognized. Third, the government maintains that federal courts have, at most, a highly circumscribed role in these cases, saying they have no authority to question Trump's historically unprecedented invocation of the AEA against alleged gang members.

Trump's assertion of unreviewable power under the AEA is part of a broader pattern that became clear during his first year in office. He has made similar claims regarding his tariffs and National Guard deployments. In these and other cases, Trump's position undermines civil liberties, the rule of law, and the separation of powers by attacking the crucial role that the judicial branch plays in making sure that presidents respect statutory and constitutional limits on their authority.

Trump's invocation of the AEA was dubious from the beginning. That rarely used 1798 statute applies when "there is a declared war" between the United States and a "foreign nation or government" or when a "foreign nation or government" has "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States" (even when a war has not been declared). In those circumstances, the AEA authorizes "restraint, regulation, and removal" of "natives, citizens, denizens, or subjects of the hostile nation or government," provided they are at least 14 years old.

In a proclamation published on the evening of Saturday, March 15, Trump implausibly claimed that members of the Venezuelan gang Tren de Aragua qualified as "alien enemies" under that definition. In addition to dubiously asserting that Tren de Aragua had "perpetrated, attempted, or threatened" an "invasion or predatory incursion against the territory of the United States," the proclamation counterintuitively implied that the gang was a "foreign nation or government." Trump further stretched the language of the statute by implying that alleged Tren de Aragua members were "natives, citizens, denizens, or subjects" of the gang.

Trump's initial use of the AEA was clearly designed to avoid judicial review altogether. By the time he published his........

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