cross-posted from: https://slrpnk.net/post/19772085

Summary:

Trump administration lawyers have determined that an 18th-century wartime law the president has invoked to deport suspected members of a Venezuelan gang allows federal agents to enter homes without a warrant, according to people familiar with internal discussions.

The disclosure reflects the Trump administration’s aggressive view of presidential power, including setting aside a key provision of the Fourth Amendment that requires a court order to search someone’s home.

It remains unclear whether the administration will apply the law in this way, but experts say such an interpretation would infringe on basic civil liberties and raise the potential for misuse. Warrantless entries have some precedent in America’s wartime history, but invoking the law in peacetime to pursue undocumented immigrants in such a way would be an entirely new application, they added.

“It undermines fundamental protections that are recognized in the Fourth Amendment, and in the due process clause,” said Christopher Slobogin, a law professor at Vanderbilt University.

Last week, Mr. Trump quietly signed a proclamation invoking the law, known as the Alien Enemies Act of 1798. It grants him the authority to remove from the United States foreign citizens he has designated as “alien enemies” in the cases of war or an invasion.

His order took aim at Venezuelan citizens 14 or older who belong to the Tren de Aragua gang, and who are not naturalized or lawful permanent residents. “All such alien enemies, wherever found within any territory subject to the jurisdiction of the United States, are subject to summary apprehension,” the proclamation said.

Senior lawyers at the Justice Department view that language, combined with the historical use of the law, to mean that the government does not need a warrant to enter a home or premises to search for people believed to be members of that gang, according to two officials familiar with the new policy.