In the realm of constitutional jurisprudence, few principles are as foundational as due process, a concept enshrined in the Fifth and Fourteenth Amendments of the United States Constitution. This bedrock principle, which prohibits government deprivation of “life, liberty, or property, without due process of law,” faces a significant test through the Trump administration’s novel application of the Alien Enemies Act (AEA).
Constitutional Cornerstone
Due process operates through two critical aspects, procedural and substantive. Procedural due process ensures equitable mechanisms before the deprivation of rights can occur, including notification, access to impartial adjudicators and opportunity to present evidence. As established almost 50 years ago, courts balance the individual interest at stake, risk of erroneous deprivation and governmental interest when determining what process is due.
Substantive due process shields fundamental rights from governmental intrusion regardless of procedural adequacy. Through this doctrine, the Supreme Court has recognized–at least as of now–constitutional protections for privacy rights, intimate associations and marriage equality.
The AEA Controversy
The current controversy stems from President Trump’s proclamation designating members of the Venezuelan gang Tren de Aragua as “alien enemies” under the AEA, a 227-year-old statute previously invoked only during the actual military conflicts of the War of 1812, World War I and World War II.
The Supreme Court unanimously held in Trump v. J.G.G. (2025) that designated “alien enemies” have due process rights, including the right to challenge their designation through habeas corpus petitions. The Court specifically noted that detainees “must receive notice” of their removal “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”
The Trump administration’s implementation of this requirement was remarkably narrow: providing detainees just 12 hours to indicate if they plan to file habeas petitions, followed by 24 hours to actually file. This stands in stark contrast to historical precedent. During World War II, those designated as “alien enemies” received at least 30 days to challenge their detention and removal, plus an opportunity to voluntarily leave the United States.
The ACLU’s Challenge
The ACLU’s lawsuit challenges both the procedural mechanisms and substantive legal interpretation underpinning the administration’s deportation program. The organization identifies several troubling aspects:
- Inadequate Notice: The English-only forms provided to detainees “nowhere mentioned the right to contest the designation or removal, much less explained how detainees could do so.”
- Unreasonable Timeframes: The 12-hour/24-hour deadlines make it virtually impossible for detainees to secure legal representation and prepare habeas petitions.
- Questionable Identification Methods: The government’s “alien enemy validation guide” relies on potentially unreliable criteria such as tattoos, clothing, social media posts and association with “known” gang members.
- Concerning Detention Conditions: Deportees sent to El Salvador’s Terrorism Confinement Center allegedly face torture, beatings, waterboarding and lack of access to counsel, healthcare and adequate food.
This case highlights the tensions that arise in immigration contexts, where due process questions frequently emerge regarding asylum petitioners, detention conditions and removal proceedings. While the Supreme Court has acknowledged that non-citizens within U.S. territorial jurisdiction are entitled to certain due process protections, it has simultaneously accorded the political branches substantial discretion in establishing immigration procedures.
The case represents perhaps the most extreme example of these tensions, with the government asserting broad authority to designate and remove non-citizens under a statute originally designed for wartime application.
The AEA’s Historical Context and Textual Limitations
The administration’s legal argument faces significant challenges regarding the AEA’s text and historical context. The 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.”
Historical evidence overwhelmingly indicates that “invasion” was understood in military terms. The AEA was enacted in 1798 when the United States was preparing for possible war with France, which was already attacking U.S. merchant ships in American waters.
Trump’s proclamation stretches this language beyond recognition by implying that Tren de Aragua constitutes a “foreign nation or government” capable of “invasion.” Even more problematically, Trump refers to “members” of Tren de Aragua as “alien enemies,” but the AEA defines that term as “natives, citizens, denizens, or subjects of the hostile nation or government.” It defies logic to suggest that gang members are “citizens” or “subjects” of their criminal organization.
The administration initially argued that courts could not assess the plausibility of Trump’s interpretation because it was a “political question.” However, at the Supreme Court, the administration’s lawyers conceded that detainees “may be able to obtain narrow review of ‘the construction and validity of the statute,'” consistent with the Court’s ruling in Ludecke v. Watkins (1948).
Due Process as Institutional Safeguard
In our politically polarized landscape, due process should serve as a bulwark ensuring that no individual suffers unjust punishment based on ideological convictions or demographic characteristics. When political passions intensify, due process requirements impose deliberative restraint and mandate equitable treatment irrespective of political affiliation, racial identity or religious conviction.
Even during national security contingencies, these principles help ensure that governmental authority operates within constitutional parameters, as exemplified by Hamdi v. Rumsfeld (2004), which affirmed that even enemy combatants retain certain procedural entitlements.
Preserving Institutional Legitimacy
As our nation confronts profound political polarization, due process serves an additional vital function, preserving institutional legitimacy. Research consistently demonstrates that people display greater willingness to accept adverse determinations when they perceive procedural fairness.
In an era characterized by diminishing institutional credibility, due process provides a decisional framework that can help restore confidence in governmental institutions through transparency, reasoned justifications, and opportunities for affected parties to present their perspectives.
Conclusion: Balancing Security and Constitutional Protections
The Trump administration’s application of the AEA raises fundamental questions about the proper balance between national security interests and constitutional protections. If the administration’s interpretation prevails, it would represent an extraordinary expansion of executive power to designate and summarily deport non-citizens without meaningful judicial review, a precedent that would significantly erode due process protections central to American jurisprudence since the founding.
The jurisprudential genius of due process lies in its simultaneous flexibility and constancy. While specific applications evolve with changing societal circumstances, the core commitment to procedural fairness remains immutable, providing common ground in a pluralistic society where consensus on substantive outcomes may often prove elusive.
In the final analysis, the question before the courts is not merely technical but foundational: will the judiciary permit the executive branch to stretch a 227-year-old statute beyond recognition to circumvent due process protections, or will it reaffirm the principle that even in matters of immigration and national security, the government must operate within the constraints of constitutional due process? The answer will have profound implications for our democracy in the years ahead.