The court found there has not been an ‘invasion’ or ‘predatory incursion’ as those terms were understood when the AEA was enacted.
A federal judge in Texas, appointed by President Trump, has invalidated the president’s invocation of the 1798 Alien Enemies Act (now codified in Section 21 of Title 50, U.S. Code) to direct the summary deportation of Venezuelans alleged to be members of Tren de Aragua (TdA).
Judge Francisco Rodriguez Jr., of the U.S. District Court for the Southern District of Texas, concluded that
the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms. As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class, or to remove them from the country.
In his 36-page opinion, Judge Rodriguez determined, contrary to the Trump Justice Department’s position, that designations are not insulated from judicial as political questions — relying on the Supreme Court’s World War II–era decision in Ludecke v. Watkins (1948) (which I discussed here).
Although the AEA is provision that has only been invoked three times in periods of declared war (the War of 1812 and World Wars I and II), Rodriguez agreed with the Trump Justice Department that a state of actual war is not required. Nevertheless, he held that, to trigger the AEA, an “invasion” or “predatory incursion” must involve “an organized, armed force entering the United States to engage in conduct destructive of property and human life in a specific geographical area.”
The judge further found that, while the Trump administration had successfully linked TdA to the Maduro regime in Venezuela, TdA’s activities in the United States, even assuming they are directed by the Venezuelan regime, “do not fall within the plain, ordinary meaning of ‘invasion’ or ‘predatory incursion’” — even though the gang’s activities may well be “unambiguously . . . harmful to society in this country.”
As a result, Judge Rodriguez ruled that the petitioners were entitled to a granting of their writ of habeas corpus and a permanent injunction barring the Trump administration from employing President Trump’s AEA proclamation against them. The judge, moreover, has certified a class of similarly situated Venezuelans in the U.S. District Court for the Southern District of Texas, and deemed that they, too, are entitled to the same protection. Rodriguez made clear that his decision was no impediment to the Trump administration’s continuing to pursue removal proceedings and enforce any final removal orders against the Venezuelans in question.
I expect that the Trump Justice Department will appeal to the Fifth Circuit, and that it will lose there, as well as in the Supreme Court if it presses the matter that far. It is obvious from Judge Rodriguez’s careful and thoroughly researched opinion that he is sympathetic to the administration’s prioritization of immigration-law enforcement. As observed above, he even sided with the administration on important AEA questions — e.g., whether it could only be invoked under war conditions (no) and whether TdA was a de facto arm of the Maduro regime (yes). He is obviously correct, however, that there has been no invasion or predatory incursion as those terms were understood when the AEA was enacted.
To repeat what I’ve argued before, the administration would be better off abandoning the AEA and deporting TdA members based on the State Department’s designation of TdA as a terrorist organization. The administration would still have to afford due process — that is an ineliminable part of the legal system. But the proceedings could be expedited.
Again, the problem with immigration enforcement is not that federal law is too burdensome for the government. It is that the government went too long failing to enforce the law, and Congress has not provided sufficient resources to deal with the resulting backlog, which has reached crisis levels.