Susan Shelley: Trump protects America with Venezuela deportations

Did the Trump administration violate the law by flying Venezuelan migrants out of the country as the ACLU battled in court to prevent it?

We’ll all find out together when this case gets to the U.S. Supreme Court. It’s just one of the legal fights President Donald Trump has picked in what seems to be an wide-ranging effort to force the court to recognize and clarify the full extent of a president’s constitutional powers.

The fate of the deportation case may turn on the legal meaning of “predatory incursion.” Under U.S. law, the president has the authority to remove foreign nationals over the age of 14 (criminals or not), at a time of a declared war or whenever “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.”

The law is the Alien Enemies Act, enacted in 1798. It has been invoked only a few times. Shortly after Germany’s surrender in World War II, on July 14, 1945, President Harry Truman directed the removal of all alien enemies “deemed by the Attorney General to be dangerous” to the public safety. On Jan. 18, 1946, German national Karl Ludecke, designated an “alien enemy,” was ordered removed from the United States.

Ludecke sued, arguing that the “declared war” was over, and the Alien Enemies Act could not apply. But the Supreme Court disagreed.

“Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise,” the Court said. “We hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it — on the President of the United States.”

There is no “declared war” with Venezuela, but there’s that second condition that can reanimate the Alien Enemies Act: “any invasion or predatory incursion” by “any foreign nation or government.”

On March 15, President Trump publicly released a proclamation declaring that the Venezuelan criminal gang known as Tren de Aragua “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States” and “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.”

The question isn’t only whether that’s accurate, but also, does any court have the authority to say it isn’t?

There were five original plaintiffs in this case, known as J.G.G. v. Trump, but U.S. District Judge James E. Boasberg quickly certified a class. As described by D.C. Court of Appeals Judge Karen Henderson, the original plaintiffs and all the members of the class are Venezuelan nationals in government custody, all without permission or lawful documentation to be in the United States. Most or all are in immigration detention centers awaiting immigration or removal proceedings.

So far, the case has gone back and forth over whether an appellate court can review a temporary restraining order, whether the case should be heard in Texas where the five original plaintiffs were in custody instead of in the District of Columbia, and whether the planes that transported more than 200 alleged members of the Tren de Aragua gang left U.S. airspace before or after a judge ordered the government not to let them take off.

But when the case itself finally gets to the Supreme Court, we’re likely to get a decision on the merits — did the president exercise his powers within the law, or not?

Meanwhile, the American people can make their own determination about the validity of the president’s assertions. Has there been an “invasion or predatory incursion” by Tren de Aragua and does it have ties to the Venezuelan government? How do we know the detained Venezuelans are members of TdA? Why were they transported to a prison in El Salvador? Here’s what we know.

They were sent to El Salvador because Venezuela wouldn’t accept them, and President Trump, citing his authority under the Alien Enemies Act, won’t allow them to stay here.

The U.S. government knows they are TdA members, according to border czar Tom Homan, “based on numerous criminal investigations and intelligence reports and a lot of work by ICE officers.”

News reports from 2024 back him up. Federal officials had worked on 100 investigations related to Tren de Aragua, according to a New York Times report in September, citing sources in the Department of Homeland Security. NBC News reported in October that DHS had identified and confirmed 100 members of the TdA gang in the United States, and another 500 people with ties to the organization.

Last July, the Biden Treasury Department designated Tren de Aragua as a “significant Transnational Criminal Organization” engaged in “kidnapping, human trafficking, extortion, and the trafficking of illicit drugs.” In February, the Trump State Department declared TdA a “Foreign Terrorist Organization,” citing, among other things, that the group “bribed public officials, authorized its members to attack and kill U.S. law enforcement, and assassinated a Venezuelan opposition figure.”

Tren de Aragua is “intricately intertwined with the Maduro regime,” the administration’s lawyers told the Court of Appeals, forming a “hybrid criminal state.” Judge Henderson said “such issues are appropriately left to the district court” to determine. But are they? Does one district judge know more than the entire executive branch of the U.S. government?

As for a “predatory incursion,” the Trump administration could cite these 2024 headlines:

“Tren de Aragua gang started in Venezuela’s prisons and now spreads fear in the US,” AP News, Sept. 24.

“This is the dangerous Venezuelan gang infiltrating the US that you probably know nothing about but should,” CNN, June 10.

“‘Ghost criminals’: How Venezuelan gang members are slipping into the US,’” NBC News, June 12.

No one should be surprised that voters elected a president who promised to do something about it. The suspected Tren de Aragua gang members certainly deserve a fair hearing. In Venezuela.

Reach Susan at Susan@SusanShelley.com and follow her on Twitter: @Susan_Shelley.