Adios, Tren de Aragua | Power Line

President Trump has moved aggressively and effectively against the horrific Venezuelan gang, Tren de Aragua. He is using a federal statute, 50 U.S.C. 21, the Enemy Aliens Act, to expedite that removal. The legal analysis underlying his actions is, in my opinion, sound.

50 U.S.C. 21 says, in pertinent part:

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….

Let’s pause there. There is of course no declared war, but it is plausible to argue that there is an “invasion” carried out by Tren de Aragua. It is even more plausible to argue that that gang’s attacks on the United States are a “predatory incursion.” The real question is whether their invasion or predatory incursion is an act of a foreign government.

Trump’s executive order invoking 50 U.S.C. 21 addresses that question at length. I will quote most of it, because it is the decisive legal issue:

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.

TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus. TdA grew significantly while Tareck El Aissami served as governor of Aragua between 2012 and 2017. In 2017, El Aissami was appointed as Vice President of Venezuela. Soon thereafter, the United States Department of the Treasury designated El Aissami as a Specially Designated Narcotics Trafficker under the Foreign Narcotics Kingpin Designation Act, 21 U.S.C. 1901 et seq. El Aissami is currently a United States fugitive facing charges arising from his violations of United States sanctions triggered by his Department of the Treasury designation.

Like El Aissami, 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 United States. In 2020, Maduro and other regime members were charged with narcoterrorism and other crimes in connection with this plot against America.

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 United States, and which poses a substantial danger to the United States. Indeed, in December 2024, INTERPOL Washington confirmed: “Tren de Aragua has emerged as a significant threat to the United States as it infiltrates migration flows from Venezuela.”

Thus, the President’s ensuing proclamation states:

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 undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela. I make these findings using the full extent of my authority to conduct the Nation’s foreign affairs under the Constitution.

One can debate whether TdA is an arm of the Venezuelan narco-state, but Trump’s finding that it is strikes me as entirely proper.

Democrats, on the other hand, are outraged that Trump is actually trying to do something about the vicious gangs that are afflicting many American neighborhoods (but not, of course, theirs). Four Democratic members of Congress sent Trump a letter that is essentially a legal brief against his invocation of 50 U.S.C. 21. As such, it fails miserably. They write:

As a legal matter, migration is not an “invasion.” As courts have consistently held, an “invasion” under the Constitution requires “armed hostility from another political entity, such as another state or foreign country that is intending to overthrow the [] government.”4 Courts’ requirement of an armed attack is consistent with how the term “invasion” is used throughout the Constitution, alongside language like “insurrection” and “rebellion.”

One is tempted to say that if the protest of January 6, 2017 was an “insurrection,” then TdA’s attacks on us are certainly an invasion. More to the point, the Democrats’ letter never even mentions that law’s alternative ground of a “predatory incursion”–a very poor piece of lawyering.

The American Civil Liberties Union and Democracy Forward sued to stop the administration from deporting Venezuelan gang members, in federal court in Washington, D.C. Why? I suppose because they want the gang members to stay here and continue to prey on Americans. Judge James Boasberg, an Obama appointee, granted a temporary restraining order prohibiting the deportation of TdA gang members. Absurdly, Boasberg even ordered that any airplanes already in the air, carrying TdA members to El Salvador, must turn around.

It is being alleged that the Trump administration has “violated” Boasberg’s order. I am not sure whether that is true or not; it could be. Until now, both in his first term and so far in his second, Trump has scrupulously obeyed court orders, even when they are ridiculous, and even when they represent clear overreaching by partisan district court judges who have no jurisdiction to set American foreign policy. Will Trump’s bending over backward in deference to the judicial branch continue?

Perhaps not. The Democratic Party is using loyalist district court judges to try to throw monkey wrenches into the Trump administration’s actions, in order to frustrate the policy choices of the administration and of the American people. Judge shopping is quite easy, and appellate procedures necessarily take time. Is the president really obliged to obey, pending a full hearing or appeal, an illegitimate order by a relatively minor functionary who is determined to advance the agenda of the Democratic Party? Our imperial judges sometimes seem to forget that the president is an equal branch of government–equal, that is, to the entire judicial branch.

So on the legal front, as on others, we may be in for interesting times.