Hey, Congress, How About Giving the President a Little Help on Tren de Aragua Deportations?
Hey, Congress, How About Giving the President a Little Help on Tren de Aragua Deportations?
As we’ve covered extensively (see, e.g., here, here, and here), President Trump’s authority to summarily deport hundreds of Venezuelan aliens alleged to be tied to the vicious Tren de Aragua (TdA) international criminal gang is highly debatable. He has invoked the Alien Enemy Act of 1798 (AEA) (see Section 21 of Title 50, U.S. Code), a provision intended for wartime conditions, which enables the president to expel nationals of the enemy power. This raises weighty questions about (a) whether an invasion or a predatory incursion has occurred (we can all agree that there is no declared waragainst Venezuela, its Marxist regime, or arms of that regime), and (b) who gets to decide the question — the president or a judge?
As we watch the confrontation between the president and the courts, you may have noticed there that one branch of the government is missing from our deliberations: Congress. That should be intolerable. Congress just happens to be the most consequential branch in this equation. As a matter of constitutional law, it is the branch that is empowered to declare war and to prescribe the conditions under which aliens may be expelled from the United States.
Alas, as usual, the circus is in town on Capitol Hill, as Republican and Democrats hurl brickbats at each other over the nonsense issue of impeaching federal judges. It is obviously worth debating what to do about the abusive practice of single district judges purporting to make national policy — tying the hands of the president as well as other courts — by issuing nationwide injunctions. Both parties ought to have an interest in that since administrations of both parties have been frustrated by it. But it is daft to be railing about impeaching judges when it is highly debatable whether the impeachment remedy is theoretically available for even appalling judicial decisions and, practically speaking, the votes are not there even to file impeachment articles in the House, much less to convict in the Senate by the required supermajority margin.
On the other hand, Congress could actually do something meaningful regarding this vicious subset of criminal aliens, which even most Democrats claim to agree should be deported.
I don’t give the Trump Justice Department much chance of prevailing on the AEA invocation — certainly not in the lower courts. The substantive hearing on Friday before Chief Judge James Boasberg at federal court in Washington, D.C., did not go well for the DOJ, and I expect rough sledding in the D.C. Circuit this afternoon (notwithstanding that the three-judge panel features appointees of Presidents Bush-41 and Trump-45, in addition to an appointee of President Obama). As I’ve explained, this is because those courts are bound to follow the Supreme Court’s post-9/11 precedents, which (a) give the judiciary a more prominent role in wartime national security matters, such as the designation and disposition of alien enemy combatants, and (b) held that even if captured and held outside the United States, those combatants have rights to judicial review — the executive may not unilaterally detain, try, or extradite them, cutting out the federal courts.
I would like to see the current Supreme Court reconsider those precedents. The lower courts, however, have to follow them. Moreover, even if the Supreme Court were disposed to reconsider the post-9/11 jurisprudence, Trump’s invocation of the AEA is not a good vehicle for it: We are not at war, Congress has not authorized wartime measures against Venezuela and its nationals, Congress has not suspended habeas corpus, and the aliens in question were being detained in the United States where the courts are open and functioning.
That said, one can certainly sympathize with President Trump’s instincts and frustration. He was elected in large part to address the Biden border collapse and the resulting tsunami of illegal immigration, which includes significant numbers of gang members (TdA is not the only gang involved), terrorists, and criminals.
(When I say “significant numbers,” I am not saying that a large percentage of the 20 million illegal aliens estimated to be in our country are gang members or terrorists, or that they habitually commit ordinary criminal offenses not directly related to their immigration crimes. What I mean is that even if only a small percentage of the total illegal alien population fit these categories, that makes for unacceptably large threats of gang crime and terrorism.)
In addition, Congress speaks with a forked tongue on illegal immigration. On the one hand, it rightly calls for illegal aliens to be detained until it is determined in legal proceedings that they are permitted to be present in our country; on the other hand, it provides for a laughably inadequate amount of detention space for this purpose.
The president is thus groping for a way to address the national security and crime perils that make it imperative to remove from the country dangerous aliens — people who are not citizens and who do not have a right to stay here — under circumstances in which normal removal and deportation proceedings are not up to the task. That is the good reason for trying to invoke the AEA. Yes, I believe the administration is going to lose in court; nevertheless, there is a non-frivolous textual argument that summary deportation is permissible and that the president is the constitutional officer best positioned to make the political determination that there has been an invasion or predatory incursion that endangers the nation.
But note: The president is out on this limb because Congress is AWOL.
Congress could enact a statute that (a) makes findings about the hostility of the regime of Nicolas Maduro (which the U.S. does not recognize as the legitimate government of Venezuela) and connects TdA to Maduro’s anti-American operations, and (b) empowers the president to expel Venezuelan nationals in the United States who, in the judgment of the president and/or top executive officials (perhaps the secretaries of state and homeland security and the attorney general), pose a security risk to the United States, including but not limited to regime officials, their collaborators, and TdA members and associates.
To be clear, this would not be applicable to U.S. citizens’ only to aliens who do not have a constitutional right to be in the United States. Congress has supremacy over the courts on the political determination of what aliens may be lawfully present in the United States and what process, if any, they are entitled to if the executive branch seeks to deport them.
This is not a reach.
In March 2020, the Trump-45 Justice Department indicted Maduro and numerous other Venezuelan officials on charges of narco-terrorism conspiracy, and the government for years has offered lucrative rewards for information leading to their arrests and prosecutions. Several indictments along these lines have been filed in U.S. courts.
Among the Venezuelan officials under indictment is the former Vice President Tareck El Aissami Maddah. He is a 51-year-old Venezuelan Marxist hardliner of Lebanese and Syrian descent, whose ruthlessness and international connections made him a rising star in Hugo Chavez’s regime. (Maduro, of course, is Chavez’s successor.) El Aissami has been a key figure in the regime’s operational ties with Cuba, Iran, and Russia. It was under El Aissami’s influence, when he was governor of Aragua state from 2012 to 2017, that TdA evolved from a criminal gang into an international criminal syndicate and arm of the regime.
As the DOJ’s indictment alleged, Maduro’s regime was not merely enriching itself via narcotics trafficking. The narco-terrorism charges stem from its partnership with FARC (Fuerzas Armadas Revolucionarias de Colombia), a terrorist organization that fought a brutal war against the Colombian government. American support for Colombia’s defense had the effect of shifting the center of gravity of high-scale cocaine trafficking from Colombia to Venezuela.
Maduro and his top confederates established the Cártel de los Solos(Cartel of the Sun) to work in partnership with FARC. In this connection, cocaine was used by Maduro’s regime as a weapon against the United States. The regime and its anti-American allies intentionally aimed to inflict our nation’s citizens with addiction and the drug’s other deleterious effects. The government estimates that by 2004, Venezuela was annually exporting an astonishing 250 tons of cocaine.
In 2017, shortly after he became vice president in Maduro’s regime, the Trump-45 administration (through the Treasury Department’s Office of Foreign Assets Control) designated El Aissami a “specially designated narcotics trafficker.” An indictment against him was also unsealed in 2020, outlining his alleged efforts to defeat the OFAC sanctions against him in furtherance of his work on behalf of Maduro — specifically, by traveling to Russia, Turkey, the Dominican Republic, and elsewhere to collaborate with the regime’s facilitators.
With the regime’s support, TdA established cells in Colombia, Peru, and Chile. It now has an extensive U.S. presence, including in many major cities — such as Denver, where it took de facto control of a housing complex last year. In designating it as a foreign terrorist organization in February, the Trump-47 State Department noted that TdA “has conducted kidnappings, extorted businesses, bribed public officials, authorized its members to attack and kill U.S. law enforcement, and assassinated a Venezuelan opposition figure.” In invoking the AEA on March 15, the president reaffirmed TdA’s intimate ties to Maduro’s military and law enforcement apparatus, as well as its pattern of “murders, kidnappings, extortions, and human, drug, and weapons trafficking.” Its objectives include “supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.” In that vein, TdA coordinates with the Cartel de los Solos “to carry out its objective of using illegal narcotics as a weapon to ‘flood’ the United States” (quoting the Maduro indictment).
This is not merely a Trump conclusion or a Republican conclusion. While President Biden foolishly eased up sanctions on Maduro in hopes of inducing Democratic reform, even Biden ratcheted up sanctions when, sure as sunrise, Maduro corrupted Venezuela’s presidential election and refused to relinquish power when he lost. And although it was a reckless exacerbation of the illegal immigration crisis for Biden to grant Temporary Protected Status to hundreds of thousands of Venezuelans, and to encourage many thousands more to come to the United States, the ostensible rationale for these moves was the brutality of the Maduro regime and its operatives.
Those operatives very much include TdA. So why isn’t Congress doing something about it by helping the president deport TdA members forthwith?
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