Elon Musk told Fox News’ Larry Kudlow this past week that Democrats support the safety net programs like Social Security, Medicare and Medicaid so they can lure undocumented immigrants to America and get their votes. It’s based upon the previously “fringe” Great Replacement Theory, which Musk apparently believes justifies taking a chainsaw to the federal government. It’s nonsense, of course. Undocumented immigrants cannot collect any of those benefits despite the fact that they routinely pay into them. Musk has it completely backwards. And, no they can’t vote either.
The question now is just how far into the Trump administration this Great Replacement ideology goes. It’s clear that top adviser Stephen Miller believes it and it’s quite likely a number of others do as well. Considering that this weekend Trump invoked the Alien Enemies Act, under the pretense that we are being “invaded” you have to wonder when they are going to find a way to declare full “wartime” powers. Who knows? Maybe they’ll find a way to use the Great Replacement Theory to round up their domestic political enemies as well . After all, they believe they’re providing “material support” for alien enemies with their support for “entitlements.” (I’m only half kidding…)
With the invocation of the 1798 Alien Enemies Act of the Trump administration took another giant leap toward a Constitutional crisis. The Brennan Center defines the rarely used law this way:
The Alien Enemies Act of 1798 is a wartime authority that allows the president to detain or deport the natives and citizens of an enemy nation. The law permits the president to target these immigrants without a hearing and based only on their country of birth or citizenship.
They point out that it is supposed to be used in cases of espionage or sabotage but in only three cases: the War of 1812, World War I, and World War II, which I think we can at least agree were existential crises, even if the law was applied in appalling ways. It’s the law that President Franklin Roosevelt used to justify the Japanese Internment, the darkest moment of his otherwise illustrious presidency.
But it should be noted that the law is only intended to be used under a declaration of war or when a foreign government threatens or undertakes an “invasion” or “predatory incursion.” The first requires congressional action but latter justification is up to the president under his inherent authority. But as the Brennan Center points out, previous presidents and the Supreme Court have always considered this to have been enacted under the war power:
In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold.
In other words, it was never intended to be nor has it ever been used as a power to deport people without due process for garden variety criminal activity — or no crime at all.
On Friday night Trump signed the Executive Order claiming:
“Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA,. he result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.”
Trump is nonsensically attempting to use the words “invasion” and “incursion” to describe criminal immigrants as if simply calling Venezuela a “hybrid criminal state” makes it true. Neither can the alleged members of the targeted Tren de Agua gang be accurately described as terrorists who have “unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States.” (Trump did declare the gang a terrorist organization last month but that doesn’t make it so.) It’s absurd. Assuming they are all members of the criminal gang he has cited, and there’s no way of knowing who they are since there is no due process, this is obviously a domestic criminal matter, akin to dealing with organized crime, not an act of war against the United States.
But then the alleged isolationist peacenik Donald Trump has been itching to use war powers since he became president the first time. And it didn’t completely come out of the blue. He talked about using the Alien Enemies Act on the campaign trail, often mentioning it as the only remedy for the lurid crimes he insisted were stalking everyone in America on a daily basis.
A federal judge has already issued a temporary restraining order to stop the deportations even ordering some planes filled with prisoners bound for a prison in El Salvador to turn around in the air. The administration did not obey the order later saying that the planes were already over international waters and the prisoners were transferred to the notorious El Salvadoran prison. The U.S. has agreed to pay millions for their keep.
Axios reported over the week-end that members of the White House were exuberant over the impending showdown between Trump and the judiciary over whether any judge has the power to stop a presidential order regardless of what it is, one senior official saying, “This is headed to the Supreme Court. And we’re going to win.”
According to Axios this whole drama was orchestrated by Trump senior adviser Stephen Miller and DHS Secretary Kristi Noem who planned to keep the announcement of Trump’s invocation of the Alien Enemies Act under wraps until they could fly the prisoners to El Salvador, telling the reporters, “we wanted them on the ground first, before a judge could get the case, but this is how it worked out.” But the news leaked and the ACLU and Democracy Forward quickly filed a lawsuit.
They are celebrating their handiwork:
— Rapid Response 47 (@RapidResponse47) March 16, 2025
Keep in mind that we have no idea who has been disappeared into that prison.
This is only part of the crackdown on non-citizens, regardless of their status. The case of legal green card holder Mahmoud Kahlil, detained for protesting, is the most famous at the moment. But there are others, like this Laotian mother of 5 who has been in the U.S. since she was 8 months old, snatched up without warning and put on a plane to a country she’d never been to. ICE has also deported legitimate visa holders without explanation, detained German and British tourists, European legal residents, and who knows how many Latinos, legal and otherwise, without probable cause. The sad fact is that no non-citizen can be considered safe from the threat of detention and expulsion with little or no due process in America today.
Apparently we are at war with the whole world.
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