The ACLU is challenging the constitutionality of the Trump Administration’s application of the Alien Enemies Act. Its submission on April 1 regarding Trump v J.G.G. along with all other submissions is here. Below is a summary of the ACLU’s submission (with help by ChatGPT):
The submission identifies the core legal issue as whether the government can deprive individuals of liberty based solely on their national origin without individual assessment, stating that “such blanket detention policies are constitutionally suspect and legally indefensible under modern principles of due process and equal protection.”
The ACLU critiques the government’s authority to detain non-citizens designated as “alien enemies” under the Alien Enemy Act of 1798. It raises constitutional and legal objections to detention based solely on nationality, arguing that such actions lack individualized suspicion or due process. It compares contemporary use of this authority to historical examples, particularly the internment of Japanese Americans during World War II.
Fifth Amendment: The ACLU argues that the Alien Enemy Act permits detention without trial or individualized determination, which in their view contravenes the Fifth Amendment’s Due Process Clause. The submission states that this kind of detention “without notice, without a hearing, and without any opportunity to contest the basis for the detention” deprives individuals of liberty in a manner not permitted under the Constitution. “The Due Process Clause of the Fifth Amendment prohibits the government from depriving any person of liberty without due process of law—including non-citizens physically present in the United States.” The ACLU emphasizes that due process protections under the Fifth Amendment apply to “persons,” not just citizens, and therefore extend to non-citizens, including those lawfully or unlawfully present in the country.
In summary regarding the 5th Amendment: (1) the Amendment requires a case-by-case determination before depriving someone of liberty. (2) Non-citizens are protected — Zadvydas v. Davis, 533 U.S. 678 (2001). (3) Judicial oversight Is constitutionally required. “The Constitution does not permit the executive to circumvent due process simply by labeling individuals as alien enemies.” (4) “National origin is not a proxy for dangerousness” — detaining individuals based solely on their citizenship in an enemy state is incompatible with the Fifth Amendment’s due process protections.
Mass detention of Japanese during WW 2: The ACLU says the internment of Japanese Americans as a “stark historical warning” about the consequences of using national origin as a proxy for dangerousness. It highlights that entire populations were deprived of liberty not because of individual behavior or evidence, but solely because of their ancestry. “The government relied on ancestry and national origin—not individualized suspicion—as a basis for mass internment.” The legal and factual foundations of the Japanese internment have been formally repudiated. It cites Korematsu v. United States (1944), the Supreme Court case that upheld the internment, and references the Court’s later statement in Trump v. Hawaii, 138 S. Ct. 2392 (2018), that Korematsu was “gravely wrong the day it was decided”. “The same flawed logic that justified Japanese internment—reliance on broad assumptions rather than individual assessments—underpins the Alien Enemy Act’s categorical detention authority.”
G.W. Bush era cases: The submission draws on Ex parte Endo, 323 U.S. 283 (1944), in which the Supreme Court held that the government could not detain a concededly loyal citizen, and it references Hamdi v. Rumsfeld, 542 U.S. 507 (2004), for the proposition that even during wartime, U.S. citizens are entitled to notice and an opportunity to rebut the government’s claims. The ACLU contends that similar procedural protections should apply to non-citizens detained under the Alien Enemy Act.
The submission also cites Boumediene v. Bush, 553 U.S. 723 (2008), which affirmed the constitutional right of non-citizens held at Guantanamo Bay to seek habeas corpus relief. It uses that decision to support its argument that courts must retain a role in reviewing the legality of executive detention: “Judicial abdication in times of crisis has historically led to some of the darkest chapters in American civil liberties.”
International treaty: It notes that detention based on nationality alone may violate the International Covenant on Civil and Political Rights and other human rights norms, stating that “arbitrary detention on the basis of nationality contravenes international standards that the United States has agreed to uphold.” The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly in 1966 and entered into force in 1976. It is one of the foundational documents in international human rights law, alongside the Universal Declaration of Human Rights. The United States signed the ICCPR in 1977 and ratified it in 1992.