Creating a state of war would be a steep cost to expedite the removal of Venezuelan gangsters, who could be deported under regular immigration laws anyway.
Creating a state of war would be a steep cost to expedite the removal of Venezuelan gangsters, who could be deported under regular immigration laws anyway.
O n the campaign trail, candidate Donald Trump pledged to use the 1798 Alien Enemies Act to deport illegal-alien gang members. On March 15, President Trump delivered on his promise, ordering the removal to El Salvador of about 300 Venezuelan illegal aliens suspected of being members of the Tren de Aragua (TdA) gang.
While controversy immediately arose over whether the administration had defied a court order to stop the deportation flights, the more important question will soon demand an answer: whether the Alien Enemies Act applies at all. The act grants sweeping powers to the executive branch but only during a time of declared war or “invasion or predatory incursion” by “a foreign nation or government.” President Trump will have to make a difficult case that TdA and other gangs act at the behest of foreign nations that are conducting an invasion of the United States. While Andy McCarthy goes even further and concludes that only a congressional declaration of war can justify the use of the act, we would not completely rule out the possibility that the administration could make such a showing — especially if it has evidence that it has not made public. But we agree with Andy that it’s extremely doubtful that the administration would prevail.
In 1798, Congress enacted the Alien Enemies Act in anticipation of war with revolutionary France. The bill’s chief sponsor argued that in the event of a French invasion, French spies already within the country might join the enemy “in their attack upon us, and in their plunder of our property.” Although it has been invoked rarely, the Supreme Court has affirmed its constitutionality: “The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.”
In its current form, the act says in part:
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
Eighteenth-century international law recognized a nation’s right to expel enemy aliens. The British jurist Sir William Blackstone, the authority most familiar to the Framers, wrote in 1765 that “so long as their nation continues at peace with ours, and they themselves behave peaceably, [foreign nationals] are under the king’s protection; though liable to be sent home whenever the king sees occasion.”
A declared war was one such occasion. The act naturally implements the federal government’s war power. If a nation can capture and detain members of the enemy’s military on the battlefield, it can detain and expel enemy aliens within its own territory. The United States triggered the act during the War of 1812 and World Wars I and II to detain the citizens of enemy nations.
No declared war, however, is taking place today. The questions therefore are whether TdA’s presence and activities in this country constitute an “invasion” or “predatory incursion” and whether its presence and activities are attributable to a foreign government, i.e., Venezuela. Color us skeptical as to both.
The act’s references to “invasions” and “predatory incursions” suggest a state of hostilities. Dictionaries from the Founding period define “invasion” in terms that support that understanding. For example, Noah Webster’s Compendious Dictionary of the English Language (1806) defines “invasion” as a “hostile entrance, attack, assault.” If the Trump administration is to make good its claim that the act applies, it will have to produce evidence that the deported TdA gang members entered or were sent to the United States for a hostile purpose. We think it is doubtful that the administration could make such a showing.
In support of the administration, one could cite a Heritage Foundation report that states that “the goal of the TdA, whether in Chile or the United States, is to establish territorial control to impose a criminal economy that connects illicit networks from urban and suburban areas to penitentiaries in or near those neighborhoods.” According to that report, “once an uptick in crime and violence in a local neighborhood is detected and attributed to Venezuelan migrants, the presence of the TdA is probably already established.” Furthermore, “crime and violence are just a first step for the TdA to begin moving toward its overarching goal, in America or elsewhere, to install the hybrid criminal governance model that enabled its rapid rise to the top ranks of transnational organized crime.” Though the facts are disputed, TdA reportedly took over apartment complexes in Aurora, Colo., arguably setting the stage for a version of its hybrid criminal governance model there.
Still, even if the administration could show that TdA aims to seize control of some U.S. neighborhoods and subject their inhabitants to the gang’s rule, that activity may not scale up to the level of an “invasion” or “predatory incursion.” Moreover, even if the administration could establish the occurrence of enough TdA violence within our borders, it would also have to show that TdA is effectively acting as the arm of a foreign government. And this, we believe, would be hard indeed.
Trump’s March 15 proclamation tried to defend exactly that claim. He stated that “TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” To substantiate those conclusions, Trump said that the Maduro regime in Venezuela “maintains close ties to regime-sponsored narco-terrorists” and “leads the regime-sponsored enterprise Cártel de los Soles, which coordinates with and relies on TdA and other organizations to carry out its objective of using illegal narcotics as a weapon to ‘flood’ the United States.” He also said that “in 2020, Maduro and other regime members were charged with narcoterrorism and other crimes in connection with this plot against America.” Trump described Venezuela as “a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States.”
Trump employed here a form of the “control” test, which is widely recognized in international law, and which holds a foreign state responsible for terrorist attacks within another state if the former directs or controls the terrorist group’s activities. But proving that TdA acts “at the direction” of the Maduro government would be very hard — not least because, as Trump said, much of the direction is “clandestine.” To be sure, the administration might have classified evidence that would reveal such clandestine dealings. But it would likely find it difficult to show that the Venezuelan government actively controls TdA rather than, perhaps, being unable to stop the gang. At this point, the evidence falls far short of proving the necessary link between the Maduro regime and the gang.
Relying on the Alien Enemies Act may trigger broader unintended legal consequences that the Trump administration may not have thought through. Immigration officials may favor the act because it signals an escalation in removal efforts that may deter future illegal aliens from crossing the border. Administration officials may also appreciate the domestic political benefits of a get-tough policy. The Justice Department is arguing that the military, rather than civilian law enforcement, is carrying out the deportations and that it need not share information with the courts. Minimal to zero judicial review would be the norm in military operations during a war or invasion, though the courts may demand the power in this context.
But the cost would be the creation of a state of war between the United States and Venezuela. If the United States has been invaded by Venezuelan agents, then the president can go to war in national self-defense without need of a congressional act or declaration of war. Washington could not only detain any and all Venezuelan citizens within the United States but also use military force against Caracas. It could take lethal action against the Venezuelan military, invade and occupy Venezuelan territory, and overthrow the Maduro regime. And Venezuela could try to do the same to the United States.
We hold no brief for Venezuela; the country’s people and the region would be far better off if Maduro fell and were replaced by the democratically elected opposition. But it may not be worth backsliding into a state of war to expedite the removal of illegal aliens, who could be deported under regular immigration laws anyway. Such a symbolic show of resolve on illegal immigration could hamper Trump’s effort to revive the Monroe Doctrine and win the cooperation of Latin American leaders to reduce illegal immigration and drug-trafficking.
John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute. Robert J. Delahunty is a fellow at the Claremont Institute’s Center for the American Way of Life.