56 percent of Americans approve of President Donald Trump’s handling of border security and immigration, according to the latest Fox News poll conducted March 14 to March 17, as the poll handed Trump his highest approval rating ever for a Fox poll at 49 percent.
That includes majorities approving of Trump’s handling of the border and immigration in almost every demographic: 59 percent of men, 54 percent of women, 58 percent of Whites, 45 percent of Blacks, 51 percent of Hispanics, 51 percent under the age of 30, 54 percent under the age of 45 and 57 percent above the age of 45.
And it cuts across party lines to a certain extent, with 51 percent of independents approving, 94 percent of Republicans and 19 percent of Democrats. More Democrats approve than Republicans disapprove — 19 percent to 5 percent — which is the real difference maker in the poll.
The public mood measurement from Fox comes as President Trump and his administration seek to defend their aggressive approach to combating illegal immigration and deadly drug trafficking publicly and in federal courts.
On March 15, U.S. District Judge James Boasberg sought to curtail via an injunction Trump’s proclamation the same day invoking the 1798 Alien Enemy Act that the international criminal organization Tren de Aragua, supported by Venezuela, is a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.”
The proclamation came the same day that the U.S. removed around 250 such enemy aliens were put on planes and to El Salvador, in whose jurisdiction they now reside.
But, here, Trump is not acting arbitrarily. He is executing the laws of the land.
President Trump declared Tren de Aragua and other drug cartels as terrorist organizations on Jan. 20 by executive order in accordance with 8 U.S. Code Sec. 1189, “Designation of foreign terrorist organizations.” Is Trump declaring war on the drug cartels?
And the Alien Enemy act provides in 50 U.S. Code Sec. 21 that upon presidential proclamation of “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.”
Trump also found that every member of Tren de Aragua was engaged in active hostilities against the U.S. and would not be eligible to gather up their belongings before departing the U.S. as provided under 50 U.S. Code Sec. 22: “all such members of TdA are, by virtue of their membership in that organization, chargeable with actual hostility against the United States and are therefore ineligible for the benefits of 50 U.S.C. 22.”
And while 50 U.S. Code Sec. 23 provides for federal courts to hold hearings on removals those only appear to apply to “residents” of the United States: “After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed. [emphasis added]”
So, under the emergency, Trump has declared that the Venezuela-sponsored Tren de Aragua has invaded the U.S. Therefore, legal resident aliens of Venezuela or legal resident aliens who are members of the gang could be subjected to removal, and those would appear before a federal court in a removal hearing.
A lawful permanent resident has a green card in accordance with U.S. immigration laws, for example, under 8 U.S. Code Sec. 1101(a)(20): “The term ‘lawfully admitted for permanent residence’ means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”
But the Tren de Aragua alien enemies in the particular March 15 flight were said to all be illegal aliens and therefore are “nonresidents” under U.S. law. Just pure invaders.
This would be the same as an invading army crossing the U.S. border and occupying territory in the U.S. Even if the invading army were here for six months or three years, they would not ever become “residents” under U.S. law and upon capture, would not be subjected to removal as “residents” under the Alien Enemy Act. Instead, they would be treated as enemy combatants, and subject to military law and perhaps military tribunals, if anything.
Whereas, the application of 50 U.S. Code Sec. 23 appears to be specifically for lawful residents who are potentially being deported, in which case, due process under the Fifth Amendment and the law applies.
Under the law, aliens are non-citizens. A person can be an illegal alien or a resident alien. For purposes of the Alien Enemy Act, it is further broken down that a person could either be an illegal enemy alien or a resident enemy alien. This distinction matters. One person was an invader, while the other had traveled here legally, allowed to stay and established legal residence.
Either way, under Trump’s proclamation the regulations he issued call for immediate removal of all the enemy aliens and that they “shall not be permitted residence”: “I direct that all Alien Enemies described in section 1 of this proclamation are subject to immediate apprehension, detention, and removal, and further that they shall not be permitted residence in the United States.” But any potential legal residents might still to fall under Section 23 at least until their green cards are revoked, at which point they might be treated as the illegal enemy aliens (i.e. invaders).
Again, these distinctions matter. This is particularly important as President Trump declared a national border emergency on Jan. 20 under the National Emergencies Act: “THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), hereby declare that a national emergency exists at the southern border of the United States…”
And Trump said the national border emergency requires the use of the military under 10 U.S. Code Sec. 12302, “Ready Reserve”: “and that section 12302 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretaries of the military departments concerned, subject to the direction of the Secretary of Defense. To provide additional authority to the Department of Defense to support the Federal Government’s response to the emergency at the southern border, I hereby declare that this emergency requires use of the Armed Forces…”
And, like in 2019, Trump is using the emergency to finish construction of the southern border wall under 50 U.S. Code Sec. 1631 and 10 U.S. Code. Sec. 2808: “and, in accordance with section 301 of the National Emergencies Act (50 U.S.C. 1631), that the construction authority provided in section 2808 of title 10, United States Code, is invoked and made available, according to its terms, to the Secretary of Defense and, at the discretion of the Secretary of Defense, to the Secretaries of the military departments.”
So, this is a military operation in part, and one that could undoubtedly escalate should the military start attacking the positions of the enemy drug cartels — a zone that appears to be beyond the scope of the otherwise non-emergency application of civil and criminal law.
For example, in the Civil War, then-President Abraham Lincoln invoked the Insurrection Act on April 15, 1861 to prosecute the war by federalizing state militias: “Whereas the laws of the United States have been, for some time past, and at the present and now, are opposed, and the execution thereof obstructed, in the states of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the Marshals by law, therefore, I, as Abraham Lincoln President of the United States, in virtue of the power in me vested by the Constitution and the laws, have thought fit to call out forth, and hereby do call out forth the militia of the several states, of the Union, to the aggregate number of seventyfive thousand, in order to suppress said combinations, and to cause the laws to be duly executed. The details, for this object, will be made known immediately communicated to the State authorities, through the War Department.”
Had Lincoln had to deal with the district and circuit court judges of today, every time the Union was attacking the positions of the Confederates, there would have needed to be a hearing, undoubtedly raising all sorts of ridiculous questions: Are you sure they’re the enemy? How can you tell? Was using their grey uniforms to identify targets viewpoint discrimination under the First Amendment? Should the enemy have been killed without a trial?
After all, the Fifth Amendment provides “No person shall… be deprived of life, liberty, or property, without due process of law…” But in the Civil War, 620,000 men lost their lives in both the North and the South, according to Battlefields.org, all without any trials. No due process. All under Lincoln’s declaration that there was a rebellion.
There may not be an explicit wartime exception to the Bill of Rights, but clearly there is a long-established executive exception to it in the case of military operations, even those conducted on U.S. soil.
Enacted in 1792 in response to the Whiskey Rebellion and updated in 1795, in 1807 as the Insurrection Act, in 1861 and in 1956, the law allows the President to restore order whether the state’s governor wants it or not. It was used by George Washington to put down the Whiskey Rebellion, again, by Lincoln to wage the Civil War and by Dwight Eisenhower in 1957 when Arkansas attempted to use the Arkansas National Guard to block Brown v. Board of Education and Eisenhower federalized the Guard to enforce it. In Lincoln and Eisenhower’s cases, neither intervention was requested by state governors.
And it remains the law of the land today. Under 10 U.S. Code § 252, “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
In the current case, we haven’t gotten that far yet as to consider localities that might be harboring Tren de Aragua and other terrorist gangs, but three key things already have occurred: Trump has declared the national border emergency, he has proclaimed that there is an invasion of the U.S. and he has authorized the U.S. military to deal with it.
Are we therefore in a state of war against these drug cartels? Yes, it would seem that we are. Trump is saying that Venezuela, via its proxy Tren de Aragua, is waging war against the United States, and he intends to stop it.
It’s worth noting that several states and localities are still enforcing sanctuary policies for illegal immigrants, which will undoubtedly include members of the drug cartels and other gangs that Trump has declared to be terrorist organizations. Given the presence of sanctuary cities and states, is it becoming “impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings…”?
Those cities and states should also be paying very close attention to the fact that Trump pointed to the sanctuary jurisdictions in his national emergency declaration in Sec. 17, so far, just to have federal funds cut off as an incentive to cooperate with federal authority: “Sanctuary Jurisdictions. The Attorney General and the Secretary of Homeland Security shall, to the maximum extent possible under law, evaluate and undertake any lawful actions to ensure that so-called ‘sanctuary’ jurisdictions, which seek to interfere with the lawful exercise of Federal law enforcement operations, do not receive access to Federal funds. Further, the Attorney General and the Secretary of Homeland Security shall evaluate and undertake any other lawful actions, criminal or civil, that they deem warranted based on any such jurisdiction’s practices that interfere with the enforcement of Federal law.”
Could the Insurrection Act end up being used by Trump, too, if cities and states start siding with the terrorist gangs? As noted above, it wouldn’t be the first time it was ever invoked. Arguably, the use in 1957 was for far less to desegregate the schools. Undoubtedly, Eisenhower understood what that might mean, but providing a deterrent could have been cheaper and safer than allowing an escalation at the time. We’ll never know the counterfactual.
Cities and states might not want to find out, either, since today it could also be a lot cheaper and safer to just cooperate with federal authorities and see to the removal of the terrorist gangs.
Not to be alarmist, but everyone should be paying heed to very specifically President Trump’s very legal invocation of war powers and be careful not to cross the threshold, just like any U.S. citizen the past two decades would need to take care not start aiding and abetting terrorist organizations like al Qaeda, Hamas or Islamic State, since there are long-established, definite legal consequences for doing so. This could easily come to involve military actions with lethal force utilized against the terrorist gangs, given the authorities that Trump has invoked. Do cities and states really want to get in the way of that?
So should Canada and Mexico be paying attention. Trump is expecting cooperation. So far, he is using trade tariffs and other sanctions, but under U.S. law has every means at his disposal to escalate if he decides it becomes necessary to target the enemy cartels abroad. Will it come to that? It might be better not to find out.
But in all of the above, none of the actions taken or that might be taken by President Trump to root out the terrorist invasion are arbitrary per se. Instead, they are all being done in accordance with laws that Congress has long-since enacted and that have been used throughout U.S. history in times of war and other national emergencies.
For better or for worse, President Trump, with a popular mandate from the American people to secure the border and end the illegal immigration and drug trafficking, appears to be saying he is going to wage war against these cartels.
Robert Romano is the Executive Director of Americans for Limited Government Foundation.
