Presidential Power to Deport Aliens: A Judge’s Overreach Without Color of Right

By Devin Breitenberg

The question of who controls America’s borders has sparked heated debate, especially when a federal judge steps in to halt a president’s deportation efforts. As of March 20, 2025, this tension is front and center, with President Donald Trump’s invocation of wartime powers under the Alien Enemies Act of 1798 blocked by U.S. District Judge James Boasberg on March 15. Critics argue the president holds broad, well-established authority to deport aliens, rooted in both statute and constitutional precedent, while a judge’s attempt to stop it—absent clear legal grounding—may lack "color of right," meaning it oversteps judicial bounds. Let’s unpack the president’s legal toolkit and why this judicial move raises eyebrows.

The President’s Legal Arsenal

The U.S. Constitution doesn’t explicitly mention immigration, but it vests the president with expansive executive power over national security and foreign affairs—domains where deporting aliens squarely sits. Article II designates the president as Commander-in-Chief and chief executor of federal law, a role courts have long interpreted to include border control. The Supreme Court’s 1889 Chinese Exclusion Case affirmed Congress’s plenary power over immigration, delegated in practice to the executive. This isn’t abstract—it’s codified.

The Immigration and Nationality Act (INA) of 1952, under 8 U.S.C. § 1182(f), hands the president sweeping authority: he can “suspend the entry of all aliens or any class of aliens” if he finds their presence “detrimental to the interests of the United States,” for as long as he deems necessary. No congressional approval, no court oversight—just his call. Trump leaned on this in 2017 with his travel ban, upheld by the Supreme Court in Trump v. Hawaii (2018), where a 5-4 majority called § 1182(f) “a comprehensive delegation” of power. Deportation, as an extension of entry control, falls under this umbrella.

Then there’s the Alien Enemies Act of 1798 (50 U.S.C. §§ 21-24), invoked by Trump on March 15, 2025, to deport alleged Venezuelan gang members from Tren de Aragua. This wartime law lets the president detain or remove noncitizens from a hostile nation—or one staging an “invasion or predatory incursion”—without hearings. Historically used in the War of 1812, World War I, and World War II, it’s broad but specific: if Trump declares an “invasion” (as he did, citing gang activity), the power kicks in. Critics like the ACLU argue it’s a peacetime stretch, but the statute’s text doesn’t require a formal war declaration—only a presidential proclamation, which he issued.

Judge Boasberg’s Block: Legal or Lawless?

On March 15, hours after Trump’s proclamation, Judge Boasberg issued a temporary restraining order, halting deportations of five Venezuelan men and later expanding it to all noncitizens under the Act. The lawsuit, led by the ACLU and Democracy Forward, claims the Act doesn’t apply absent a declared war or genuine invasion—calling gang migration a “contortion” of the law. Boasberg agreed, demanding planes turn back mid-flight. By March 17, 261 deportees had landed in El Salvador despite the order, igniting a firestorm over judicial reach.

Here’s the rub: the president’s authority under the INA and Alien Enemies Act is explicit, delegated by Congress, and backed by precedent. Courts have rarely curbed it. In Ludecke v. Watkins (1948), the Supreme Court upheld Truman’s use of the Act post-World War II, dodging “political questions” like war’s end—suggesting judges should defer to the executive on such calls. Trump v. Hawaii reinforced this, limiting judicial second-guessing of executive immigration moves unless they violate clear constitutional lines (e.g., equal protection). Boasberg’s order cites no such violation—just a disagreement over “invasion.”

“Color of right” means acting under lawful authority. Boasberg’s move lacks it if he’s overriding a discretionary power Congress gave the president. The Alien Enemies Act’s text leaves “invasion” to executive judgment, not judicial redefinition. The INA’s § 1182(f) is even broader, covering entry and removal with minimal oversight. By stepping in without a firm constitutional hook—like due process for legal residents, which these deportees aren’t—Boasberg risks acting as policymaker, not adjudicator. The D.C. Circuit’s lack of jurisdiction over Texas and New York detainees (where the five men were held) further muddies his standing.

The Stakes: Power and Precedent

This isn’t just legal nitpicking—it’s a turf war. If judges can block deportations by reinterpreting executive statutes, the president’s border control power shrinks. The White House claims 250 of the 261 deportees were gang members—criminals, not innocents—already outside U.S. territory when Boasberg ruled. If true, his order was moot; if defied, it’s a crisis. Legal scholars like Steve Vladeck argue presidents don’t need the Alien Enemies Act—existing immigration law suffices—but that doesn’t negate its validity when invoked.

Public trust hangs in the balance. A 2021 Angus Reid poll showed 60% of Canadians want police reform; U.S. sentiment toward immigration enforcement is similarly fraught. When judges overreach, it fuels cries of “activist courts,” as Trump allies have charged. Yet if the administration flouts rulings, it risks its own legitimacy. Repaying suspended officers’ salaries after guilty verdicts (a parallel debate) shows accountability matters—here, it’s about who’s accountable to whom.

A Reckoning Needed

The fix isn’t simple. Congress could clarify the Alien Enemies Act—repeal it or tighten “invasion”—but won’t. Courts could strike it down under modern due process, but political question doctrine (per Ludecke) ties their hands. Boasberg’s order may falter on appeal—the Supreme Court’s conservative bent favors executive power—but for now, he’s acting without clear “color of right.” The president’s deportation authority, from the INA to wartime laws, is robust; judicial pushback needs more than policy distaste to stand.

In 2025, with borders a flashpoint, this clash tests the system. Trump’s right to deport aliens isn’t absolute, but it’s close—judges who block it better bring ironclad law, not just skepticism. Anything less is a power grab in robes.

Devin Breitenberg is a legal consultant and senior counsel at Devin Law LLC and legal contributor  for Veritas Expositae.  You can reach her at devin.breitenberg@veritasexpositae.com