Trump Did It

NEWS: Judge Boasberg has issued a sweeping block of Trump’s effort to invoke wartime Powers’s to quickly deport Venezuelan nationals, telling the administration to go as far as turning around planes already in the air. https://t.co/3AsW0aDWB9

— Kyle Cheney (@kyledcheney) March 15, 2025

 Trump invoked the Alien Enemies Act.

“I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States."

”TdA” is Tren de Aragua. But a federal judge questioned whether Trump could turn a criminal gang into a foreign government for purposes of the law. Which actually is a rather open question. But completely in accord (IMHLO) with case law on this statute. Such as there is of it.

I’ll also say I don’t see a lot of room for making a criminal gang equivalent to a foreign government in this statute:

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. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

But that’s not even the beginning of a dispositive analysis. I imagine it’s a case of first impression, and the analysis will depend on the case law.*

The judge also ordered two planes carrying alleged TdA members to return to the U.S. with the deportees. So those people may be guests of the state for some time. I expect this one to be in the courts awhile.

*My reading of the statute is that the statute is only available when there is a declared state of war, which under the Constitution requires Congressional action. The opening statement is conjunctive: a state of war AND an “invasion or predatory incursion…perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.” And, third, “any foreign nation or government.” Which doesn’t seem to stretch to a criminal gang. Criminal gangs are a criminal problem; but they don’t amount to an invasion by a foreign power.