As we’ve covered extensively (see, e.g., here, here, and here), President Trump’s authority to summarily deport hundreds of Venezuelan aliens alleged to be tied to the vicious Tren de Aragua (TdA) international criminal gang is highly debatable. He has invoked the Alien Enemy Act of 1798 (AEA) (see Section 21 of Title 50, U.S. Code), a provision intended for wartime conditions, which enables the president to expel nationals of the enemy power. This raises weighty questions about (a) whether an invasion or a predatory incursion has occurred (we can all agree that there is no declared war against Venezuela, its Marxist regime, or arms of that regime), and (b) who gets to decide the question — the president or a judge?
As we watch the confrontation between the president and the courts, you may have noticed there that one branch of the government is missing from our deliberations: Congress. That should be intolerable. Congress just happens to be the most consequential branch in this equation. As a matter of constitutional law, it is the branch that is empowered to declare war and to prescribe the conditions under which aliens may be expelled from the United States.
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