Trump Deploys the Alien Enemies Act Against Venezuela and Tren De Aragua

In January, I wrote that indications pointed to President Trump “seemingly … focus[ing] on using the AEA [Alien Enemies Act] to combat international cartels that have become entwined with ‘mafia states’”. I called this “a shrewd move, using the extremely powerful tool of the AEA where he is most likely to prevail at the Supreme Court, at least as an opening gambit”.

Well, on March 15, President Trump pulled the trigger, issuing a proclamation titled “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua” providing that “all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua] TdA, are within the [U.S.], and are not actually naturalized or lawful permanent residents of the [U.S.] are liable to be apprehended, restrained, secured, and removed as Alien Enemies”. President Trump then “direct[s] that all [such] Alien Enemies … are subject to immediate apprehension, detention, and removal, and further that they shall not be permitted residence in the [U.S.]” and directs “the Attorney General and the Secretary of Homeland Security” to “apprehend, restrain, secure, and remove every such Alien Enemy”.

Two crucial questions here: Can the criminal acts of Tren De Aragua (TdA) be considered the acts of the Venezuelan government? Will federal courts approve of such a use of the AEA?

The Alien Enemies Act

The Alien Enemies Act was enacted in 1798 in reaction to a feared invasion by France, then in the throes of the French Revolution. Unlike the other “Alien and Sedition Acts”, the AEA received wide bipartisan support, including from Thomas Jefferson and James Madison. It has been ruled constitutional by the Supreme Court and is still good law, providing that:

Whenever there is a declared war between the [U.S.] and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the [U.S.] by any foreign nation or government … all natives, citizens, denizens, or subjects of the hostile nation or government [at least 14 years old and not having become naturalized U.S. citizens] … shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

The Immigration and Nationality Act’s (INA) statutory procedures and rights accorded aliens do not apply to AEA detentions and removals, though the American Civil Liberties Union (ACLU) begs to differ (more on that later). The AEA was employed during the War of 1812 and during World Wars I and II (when the U.S. detained thousands of alien enemies and removed over a thousand).

The AEA was conceived as a response to traditional conflicts between nations and can only be triggered by a declared war, or by an invasion or predatory incursion by a foreign nation or government. Can the nefarious activities of terrorist organizations and criminal cartels within our borders qualify as “invasions” or “predatory incursions”? If so, can these activities be considered as carried out by foreign nations or governments?

As I have written, Moisés Naím has documented the rise of “mafia states”, nations in which “criminals have penetrated governments to an unprecedented degree” and “rather than stamping out powerful gangs”, the “governments have instead taken over their illegal operations” with “government officials enrich[ing] themselves … while exploiting the money, muscle, political influence, and global connections of criminal syndicates to cement and expand their own power”. This has “blurr[ed] the conceptual line between states and nonstate actors”.

I have argued that the Trump administration can make a powerful argument in court that criminal cartels and other organized criminal enterprises that have become entwined with “mafia states” can reasonably be considered parts of the governments of such states. Consequently, any invasions or predatory incursions the cartels perpetrate, attempt, or threaten can be considered actions of these governments, triggering the AEA. Whether federal courts will ultimately be persuaded by such arguments is an open question. But, if they are, the AEA would authorize the summary detention and removal of members of the relevant cartels and gangs, so long as they are natives, citizens, denizens, or subjects of the relevant nation. It would also authorize the summary detention and removal of any other natives, citizens, denizens, or subjects of the relevant nation 14 and older, unless naturalized U.S. citizens.

The Alien Enemies Act, Venezuela, and Tren de Aragua

Secretary of State Marco Rubio has recently designated TdA as a foreign terrorist organization. President Trump states in his proclamation that TdA has “thousands of members, many of whom have unlawfully infiltrated the [U.S.] and are conducting irregular warfare and undertaking hostile actions against the [U.S.]”. Further, TdA “commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking” and “has engaged in and continues to engage in mass illegal migration to the [U.S.] to further its objectives of harming [U.S.] citizens, undermining public safety”.

Is Venezuela a “mafia state”? President Trump seeks to make the case that it is. He states in his proclamation that “TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela”. Further, “TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus.” It has a goal of “supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the [U.S.]”.

President Trump explains that:

Nicolas Maduro, who claims to act as Venezuela’s President and asserts control over the security forces and other authorities in Venezuela, also maintains close ties to regime-sponsored narco-terrorists. Maduro 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 [U.S.] In 2020, Maduro and other regime members were charged with narcoterrorism and other crimes in connection with this plot against America.

Here are President Trump’s money lines:

• Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the [U.S.], and which poses a substantial danger to the [U.S.]

• I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the [U.S.] TdA is undertaking hostile actions and conducting irregular warfare against the territory of the [U.S.] both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.

The Lawsuit

Of course, President Trump’s use of the AEA to remove TdA members has been challenged in federal court. But before I discuss the lawsuit, let me state two provisos. First, this piece is about the AEA, not about whether the executive branch needs to abide by federal court orders. It does. Second, this piece is not about whether a president in utilizing the AEA needs to comply with the law’s statutory requirements. A president does, and determining whether he has done so is the proper role of a federal judge should the president’s actions be challenged in federal court.

The ACLU, Democracy Forward, and the ACLU of the District of Columbia (collectively, “the ACLU”) filed a lawsuit in the U.S. District Court for the District of Columbia on behalf of five plaintiffs-petitioners, all “Venezuelan men in immigration custody threatened with imminent removal under the President’s expected Proclamation invoking the [AEA]”, and “seek[ing] to represent the following Proposed Class: All noncitizens who were, are, or will be subject to the [AEA] Proclamation and/or its implementation”. The district court’s chief judge issued a temporary restraining order and provisionally certified a class action.

Whether the Trump administration can make the case that (1) TdA has engaged in predatory incursions onto the territory of the U.S.; and (2) that these incursions may be considered the acts of the Venezuelan government, are the two ultimate questions that will need to be decided (ultimately by the Supreme Court).

The Supreme Court concluded in its seminal 1948 decision in Ludecke v. Watkins that “[R]esort to the courts may be had only to challenge the construction and validity of the statute and to question the existence of the ‘declared war[.]’ … The additional question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may also be reviewed by the court.” As the Court explained in its 1950 decision in Johnson v. Eisentrager:

The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a “declared war” exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the [AEA]. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment [citing Ludecke] [Emphasis added].

In the context of President Trump’s proclamation, the question for judicial review is not whether there is a declared war with Venezuela but whether there has been “any invasion or predatory incursion … perpetrated, attempted, or threatened against the territory of the [U.S.]” by Venezuela.

Also, in the context of President Trump’s proclamation, the question for judicial review is not whether the relevant individuals are “natives, citizens, denizens, or subjects of” Venezuela who are at least 14 years old and not naturalized U.S. citizens, but whether they are natives, citizens, denizens, or subjects of Venezuela who are at least 14 years old, and who are members of TdA, and neither naturalized U.S. citizens, nor legal permanent residents. The administration could save itself a lot of trouble by simply declaring any Venezuelan native, citizen, denizen, or subject who is 14 and older and not a naturalized U.S. citizen to be an enemy alien. Then there would be no need for it to provide sufficient evidence of membership in TdA. At the very least, I see no reason why the proclamation’s class of enemy aliens should not also include Venezuelan members of TdA who are legal permanent residents. After all, permanent residents are deportable for committing crimes as are any other aliens in the U.S.

The ACLU has made a number of arguments in the Class Action Complaint and Petition for Writ of Habeas Corpus and in the Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order. I consider many of them to be spurious.

The ACLU argues in its Memorandum of Law that the “AEA itself … permits the President to remove only those ‘alien enemies’ who ‘refuse or neglect to depart’ the [U.S.] voluntarily”. This is indeed true, as 50 U.S.C. § 21 provides that “The President is authorized … to provide for the removal of those [enemy aliens] who, not being permitted to reside within the [U.S.], refuse or neglect to depart therefrom.” So, DHS will presumably need to provide enemy aliens with some opportunity to depart on their own.

The ACLU further states that “The AEA requires that the President generally afford individuals who are removable under the statute a ‘reasonable time’ to depart, ‘as may be consistent with the public safety, and according to the dictates of humanity and national hospitality[.]’” While this is generally true, it does not apply to enemy aliens who are “chargeable with actual hostility, or other crime against the public safety”, which TdA members presumably all are.

The Complaint contends that:

The Due Process Clause of the Fifth Amendment provides in relevant part that: “No person shall be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. … In denying Plaintiffs meaningful procedural protections to challenge their removal, the Proclamation violates due process.

The ACLU must have forgotten the Supreme Court’s conclusion in Eisentrager that “[t]he resident enemy alien is constitutionally subject to summary arrest, internment and deportation” and the Court’s statement in Ludecke that “The [AEA] 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.” As the 2nd Circuit ruled in 1946 in United States ex rel. Schlueter v. Watkins,¹ the AEA “is constitutional … [and] did not compel a hearing which would meet the requirements of due process”.

What rationale could there be for these decisions? Well, as J. Gregory Sidak has explained:

[The AEA] affords far less protection of individual liberty than do peacetime statutes, which guarantee that an alien will not be deported without the basic rights of due process. This difference is based on the recognition that, in wartime, the President must be able to act quickly to intern or remove persons who, taken as a class, seem likely to jeopardize the nation’s security.

The Complaint sets forth the most significant, and significantly spurious, argument made by the ACLU:

• The INA … sets out the sole mechanisms established by Congress for the removal of noncitizens.

  The INA provides that a removal proceeding before an immigration judge under [§ 240] is “the sole and exclusive procedure” by which the government may determine whether to remove an individual, “[u]nless otherwise specified” in the INA.

  In addition to laying out the process by which the government determines whether to remove an individual, the INA also enshrines certain forms of humanitarian protection.

• The INA’s “exclusive procedure” and statutory protections apply to any removal of a noncitizen from the United States, including removals authorized by the AEA. Because the AEA Process provides for the removal of Plaintiffs without the procedures specified in the INA, it violates [§ 240].

  As a result, the application of the AEA to Plaintiffs, which will result in their removal from the [U.S.], is contrary to law.

This is a pretty extraordinary assertion — that even when the president can utilize the AEA, all removals will have to go through the Title 8 immigration court process (or, at the very least, the expedited removal process). However, this would render wholly ineffectual the president’s power under the AEA to subject “resident enemy alien[s] … to summary arrest, internment and deportation” (in the words of the Eisentrager Court), for reasons including the backlog of 3.7 million cases in the Department of Justice’s immigration courts and the Supreme Court’s decision in Zadvydas v. Davis that aliens ordered removed under the INA must be released after six months of detention if “it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.”

In support of its claim, the ACLU’s Memorandum of Law argues that:

Congress has, in legislation postdating the AEA, carefully specified the procedures by which noncitizens may be removed from the [U.S.]…

The Proclamation is expected to entirely bypass the INA’s comprehensive process for removal. … The AEA permits the President to regulate and detain alien enemies. And it permits the President to remove certain noncitizens — but the INA lays out the specific procedure by which the removal must take place. Accordingly, the Proclamation is unlawful as to Plaintiffs … because it provides for an entirely separate set of immigration procedures that ignore the INA’s “sole and exclusive” procedures for removal … .

This Court must read the AEA and the INA together, to make sense of Congress’s work and to harmonize the AEA’s permission to remove certain alien enemies with the INA’s subsequently enacted, comprehensive removal processes

The ACLU gets totally wrong Congress’s intent in passing the Immigration and Nationality Act of 1952 (1952 Act) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In 1952, the Senate Judiciary Committee knew full well that by consolidating the nation’s immigration laws, it was not impacting the AEA. How can I say that? The committee’s report to S. 2550, the Senate foundation for the 1952 Act, explained that:

• The proposed legislation has not been hastily conceived. It is rather a result of an intensive investigation and study of our entire immigration and naturalization system which was made over the course of 2 1/2 years by a subcommittee of this committee, pursuant to Senate Resolution 137 of the Eightieth Congress, first session. … The subcommittee and its staff spent literally thousands of hours of time in the study and investigation.

• [The investigation resulted in] the filing of a comprehensive and detailed report on our immigration and naturalization system (S. Rept. 1515 of the 81st Cong., 2d sess.).²

What did S. Rept. 1515 say? It stated that:

In addition to the aliens excluded by section 3 and deportable under section 19 of the 1917 act, there is the large group known as enemy aliens over whom the Government of the [U.S.] has the power of exclusion, detention, and removal. … While the law which governs them is different from the law which is applicable to other excludable and deportable aliens under our immigration laws, they are a group which, during a period of war in which the [U.S.] is involved, become subject to exclusion, detention, and removal. [Emphasis added.]

The Senate Judiciary Committee itself concluded that “the law which governs” alien enemies “is different from the law which is applicable to other excludable and deportable aliens under our immigration laws”. That was the case before the enactment of the 1952 Act, and there is no evidence that the Senate intended to change it. When it came to the removal of enemy aliens, the law governing them was and was to be the AEA, not the INA.

The ACLU points to language in the Senate Judiciary Committee’s report stating that “the bill … would repeal and supersede all previous laws with respect to deportation”.³ I would go further, and note that the report also stated that:

• [O]n April 20, 1950, Senator Pat McCarran introduced S. 3455 in the Senate which provided for the repeal of all the immigration and naturalization laws and the enactment of a completely revised immigration and naturalization code. …

  On January 29, 1951, Senator McCarran introduced S. 716, which was a revised version of the original bill, S. 3455.

• Senator … McCarran introduced the refined version (S. 2055) in the Senate. The instant bill [S. 2550], with modifications, embodies the provisions of S. 2055.⁴

Yet, despite the fact that S. 2550 was “repeal[ing] all the immigration and naturalization laws”, it failed to repeal the AEA. Why? Obviously, because the bill’s drafters did not consider the AEA to be a “law[] with respect to deportation”. It was an independent wartime measure regarding the removal of enemy aliens.

It is true that the Senate Judiciary Committee’s report stated that “The bill declares that the prescribed deportation proceedings shall be the sole and exclusive procedure for determining the deportability of any alien, notwithstanding the provisions of any other law.” ⁵

But the report’s reference to “deportability” was solely in reference to the grounds of deportation in the INA. The report also stated that “The bill contains detailed and comprehensive provisions relating to the apprehension and deportation of aliens who are within the deportable classes.”⁶ (Emphasis added.) What were “the deportable classes”? The report stated that “Section 241 [of the INA] sets forth the general classes of aliens who are subject to deportation.”⁷ (Emphasis added.) Alien enemies removable pursuant to the AEA are not now, and never were, a “deportable class” under the INA. Removal under the AEA is not now, and never was, set forth or governed by the INA — it is now, and always has been, set forth and governed by the AEA itself.

The ACLU points out that “the INA does not carve alien enemies out of its standard immigration procedures”. I’m sorry, but yes indeed the INA does. Congress created the modern § 240 of the INA in IIRIRA in 1996. The section itself tells us what “[t]he term ‘removable’ means”, providing that it means “in the case of an alien not admitted to the [U.S.] … the alien is inadmissible under section [212 of the INA], or … in the case of an alien admitted to the [U.S.] … the alien is deportable under section [237 of the INA]”. There is neither a ground of inadmissibility under § 212 nor of deportability under § 237 for an alien enemy subject to the AEA. An alien “removed” pursuant to the AEA is not being “removed” for purposes of the INA, and therefore, the language in § 240 stating that the “section shall be the sole and exclusive procedure for determining whether an alien may be … removed” simply does not apply to AEA removals.

So, why the “sole and exclusive procedure” language in § 240? It is there to emphasize one of the primary goals of IIRIRA: to establish a “[s]implified, single removal proceeding (in place of separate exclusion and deportation proceedings)”, with “procedures for exclusion and deportation … consolidated into a simpler, single procedure for removal of inadmissible and deportable aliens” (as explained in the legislative text of H.R. 2202 — the foundational House bill — as reported by the House Judiciary Committee).

Finally, there is one last argument against President Trump’s proclamation that the ACLU might have made. However, the ACLU did not do so, likely because by doing so it would have to acknowledge the extraordinary amount of power that Congress granted the president through the AEA. For, as the Federal Circuit Court for the District of Pennsylvania concluded in 1817 in Lockington v. Smith:

[T]he power of the president … to establish … rules and regulations for apprehending, restraining, securing, and removing alien enemies, under the circumstances stated in th[e AEA], appears to me to be as unlimited as the legislature could make it. He alone is authorised to direct the conduct to be observed on the part of the [U.S.] towards such alien enemies, and to prescribe the manner and degree of restraint to which they should be subject; to declare in what cases, and on what terms, their residence should be permitted, and to provide for the removal of those whom he should not permit to remain in the [U.S.], and who should refuse or neglect to depart; and, to avoid all doubt as to the extent of his power, he is authorised in general and unqualified terms, to establish any regulations which he should think necessary in the premises, and for the public safety.

The argument that the ACLU might have made would have involved the specter of abuse by a president of such extraordinary power. But the argument, even had the ACLU made it, would be unavailing. For the Supreme Court advised in Ludecke that:

Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined. In relation to the distribution of constitutional powers among the three branches of the Government, the optimistic Eighteenth Century language of Mr. Justice Iredell, speaking of this very Act, is still pertinent:

“All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people.”

(Case of Fries … .)

Accordingly, we hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it — on the President of the [U.S.]. The Founders, in their wisdom, made him not only the Commander in Chief, but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war. Such a page of history is worth more than a volume of rhetoric.

End Notes

¹ 158 F.2d 853 (2nd Cir. 1946).

² S. Rept. No. 82-1137 at 2 (1952).

³ Id. at 30.

⁴ Id. at 2-3.

⁵ Id. at 30.

⁶ Id. at 29.

⁷ Id. at 21.