President Donald Trump on March 15 issued a proclamation declaring that Venezuelan-sponsored terrorist drug cartel gangs including Tren de Aragua — so declared as terrorist organizations on Jan. 20 by executive order in accordance with 8 U.S. Code Sec. 1189, “Designation of foreign terrorist organizations,” — were engaged in an illegal invasion and thereby being subjected to the 1798 Alien Enemy Act.
The law, 50 U.S. Code Sec. 21, provides that upon presidential proclamation that “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government” that “The President is authorized… to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom…”
The proclamation stated “Tren de Aragua (TdA) is a designated Foreign Terrorist Organization with thousands of members, many of whom have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States. TdA operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking. TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.”
As a result of the proclamation, some 250 such enemy aliens were put on planes and promptly removed to El Salvador as the ink was drying from Trump’s proclamation. The planes took off at 5:45 p.m. EST, according to a summary by JustSecurity.org’s Ryan Goodman.
Then, at around 6:53 p.m., U.S. District Judge James Boasberg ordered that the planes, by then, already in international airspace, to turn around and bring the enemy aliens back to the U.S., stating, “insofar as any Plaintiffs, or any members of the putative class, are in the process of being removed or have already been removed from the United States pursuant to the Alien Enemies Act, but remain within the custody, control, and/or jurisdiction of the United States, such individuals shall be returned to the United States…”
The injunction said the plaintiffs arguments that the deportations were a violation of the 1952 and 1965 Immigration and Nationality Acts were likely to succeed, stating they “are likely to succeed on the merits of their claims that the Alien Enemies Act, 50 U.S.C. § 21 et seq., does not authorize the President to summarily remove them from the United States; that they have suffered violations of their rights under due process [and the Immigration and Nationality Act…”
So, the argument the American Civil Liberties Union (ACLU) is making is that the modern immigration laws of 1952 and 1965 somehow trump or override the contents of the 1798 Alien Enemy Act.
There’s just one problem. Neither the 1952 nor 1965 acts ever repealed the Alien Enemy Act, which is only invoked by a president upon a declaration of war or a presidential proclamation that there is an invasion.
Instead, far from repealing the 1798 Alien Enemy Act, the 1952 act explicitly invoked it and excepted enemy aliens from being permitted to enter the U.S.: “the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States… Aliens who have been arrested and deported… or who have been removed as alien enemies…”
And while the 1965 Act did amend this provision in 8 U.S. Code Sec. 1182 — it no longer mentions “alien enemies” as being inadmissible — the law still contains very similar provisions, specifically for aliens designated as terrorists, in subsection (a)(3)(B) as also being inadmissible: “Any alien who.. has engaged in a terrorist activity… is inadmissible.” Again, Judge Boasberg might have noticed that President Trump declared that Tren de Aragua was a terrorist organization.
In any event, the 1965 law never repealed the Alien Enemy Act. In fact, prior to the March 15 proclamation, the Alien Enemy Act had not yet been invoked by President Trump, and has not been invoked since World War II.
Meaning, the Alien Enemy Act must be read consistently with both the 1952 and 1965 Immigration and Nationality Acts. In the normal course of events, yes, the 1952 provisions still in effect and the 1965 provisions are the law of the land.
But if there is a declaration of war or if the President proclaims there is an invasion by a foreign country — in this case Venezuela’s narcoterrorist syndicate that includes Tren de Aragua — then the provisions of the Alien Enemy Act to “provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom…” absolutely come into play and appear to supersede the 1952 and 1965 statutes.
And we know that, specifically, because the 1952 statute put those “arrested and deported” as a separate class from those “who have been removed as alien enemies…” Meaning, in its original meaning of the law, normal deportations under the Immigration and Nationality Act are not same as removals under the Alien Enemy Act.
The erasure of “alien enemies” from 8 U.S. Code Sec. 1182 does not mean suddenly alien enemies declared under the Alien Enemy Act are suddenly admissible. In fact, 8 U.S. Code 11829(a)(9)(ii) provides that “Any alien not described in clause (i) who… has been ordered removed under section 1229a of this title or any other provision of law, or … departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. [emphasis added]”
Read that again, any alien ordered removed under “any other provision of law,” including the Alien Enemy Act, is inadmissible. Rather than repeal the 1798 law, which the 1965 and subsequent Congresses absolutely could have done, it has affirmed and invoked its continued application — when the President makes the proclamation, which he has.
Finally, in 1948, the Supreme Court ruled in Ludecke v. Watkins that actions taken by the President under the Alien Enemy Act are beyond judicial review because the presidential proclamation under it is a political question with which the President has discretion: “The very nature of the President’s power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion… The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.”
In other words, the exercise of war powers whether upon declaration of war or proclamation by the President that there is an invasion, are non-justiciable questions. The courts cannot consider the conduct of war.
And so, President Trump, confident in the law, instead of turning around, the planes continued to their destination and safely landed in San Salvador, El Salvador at 8:02 p.m. on March 15. The judge’s order be damned.
Here, you have a local federal judge who is attempting to commandeer the President’s absolute authority to secure the nation’s borders and even to engage in foreign policy and to wage war, in this case by removing enemy aliens and having them removed to an ally of the U.S., El Salvador, who has received and processed them into that country’s prison system.
If allowed to stand, Judge Boasberg’s ruling, by hampering the ability of the President to wage war when Congress has authorized that he may to repel an invasion, by definition poses a threat to national security. What’s next, if President Trump orders air strikes somewhere, a judge will issue a ruling saying the F-16s have to turn back?
In essence, President Trump defied what at this point can only be called an imperial judiciary, and Trump is going to let the chips fall where they may.
Robert Romano is the Executive Director of Americans for Limited Government Foundation.
