Several federal judges have rejected President Donald Trump's attempt to summarily deport alleged Venezuelan gang members as "alien enemies." On Tuesday night, the U.S. Court of Appeals for the 5th Circuit joined them in concluding that Trump's invocation of the Alien Enemies Act (AEA) is not supported by that 1798 law's text or history.
In a March 15 proclamation, Trump averred that the Venezuelan gang Tren de Aragua "is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States" by engaging in "mass illegal migration" and committing "brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking." He said alleged members of that gang therefore are subject to peremptory removal under the AEA as "natives, citizens, denizens, or subjects" of a "hostile nation."
The AEA applies when there is a "declared war" with "any foreign nation or government" or when "any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Prior to Trump's proclamation, the law had been invoked just three times, always in the context of declared wars—a condition that the government concedes does not exist in this case. The proclamation's validity therefore hinges on the question of whether Trump's understanding of "invasion of predatory incursion" is consistent with the terms of the statute as they were understood when it was enacted.
