Trump Executive Order Might Be Violating 4th Amendment, Experts Say

The Trump administration invoked the wartime Alien Enemies Act last week to carry out swift deportations of 300 Venezuelan migrants to a mega-prison in El Salvador. Now, officials argue the move also gave them the power to enter homes without a warrant.

While the administration has not commented on the matter, the news comes from a recent report from The New York Times, which quoted several people inside the administration on the matter speaking on the condition of anonymity.

Last week, the Trump administration quietly signed a proclamation invoking the Alien Enemies Act of 1798, granting it the authority to remove from the United States foreign citizens he has designated as "alien enemies" in the cases of war or an invasion. The 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.

Because of it, senior lawyers at the Justice Department view the language, combined with the historical use of the law, as one that allows the government to not use warrants to enter a home or premises to search for people believed to be members of that gang, according to two officials familiar with the matter.

The Fourth Amendment of the Constitution safeguards residents against unreasonable searches and seizures, ensuring that warrants are only issued upon probable cause and with particularity. Currently, immigration agents without a warrant can do little more than knock on a door and ask to come in.

Using the law to avoid warrant requirements would facilitate at least one part of the administration's bid to deliver on the president's campaign promise to cut down on immigration. 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 and unprecedented application, according to The New York Times.

It remains unclear whether the administration will adopt this tactic in their deportation efforts. The language of the Act makes reference to a "warrant of a president," giving the government "at least a foot in the door with respect to arguing that the president can order this on his own authority," said Christopher Slobogin, a law professor at Vanderbilt University.

Past court cases leave unclear what a "warrant of a president" means, and whether such an order requires something similar to the probable cause standard of a judicial warrant.

Still, experts worry the interpretation of the law could give way to abuses by the administration, as well as future ones.

Christopher A. Wellborn, the president of the National Association of Criminal Defense Lawyers, called the old law a relic that is dangerously prone to abuse— particularly when it comes to people's right to privacy in their home.

"The Fourth Amendment applies to everyone in the U.S., not just individuals with legal status," he told the New York Times. Taking away that right would be an "abuse of power that destroys our privacy, making Americans feel unsafe and vulnerable in the places where our children play and our loved ones sleep."