President Donald Trump said the United States is invading as justification for deporting some of the country’s immigrants without justification.
“The evidence rebuttally demonstrates that (Tren de Aragua) invaded the United States,” the White House Declaration on March 15 said. Tren de Aragua is a Venezuela-based gangster with a US presence.
The declaration states that Tren de Aragua is a “hybrid criminal nation committing invasions and predatory invasions of the United States,” so anyone over the age of 14 who is a member of Tren de Aragua and can be arrested and exiled by US citizenship and residents using the actions of alien enemies in 1978.
Trump and his allies have called undocumented immigrants an invasion for years, and his move to use the act for deportation is based on this feature. To summon law, the United States must be exposed to war or foreign invasions.
But is the US invading? And who decides whether it’s happening or not?
Immigration and legal experts say the United States has not been invaded by Venezuelan gangs or other groups or countries, and only undocumented immigrants constitute the invasion.
A federal judge temporarily blocked the Trump administration from using alien enemy laws to expel people. The administration says that judges’ rulings are illegal and will take away the president’s power.
In the past, courts have refused to control whether immigrants can be classified as invasion, saying it is a matter of national security and foreign policy. However, legal experts say there are exceptions that could lead judges to rule this question, such as whether the president acted maliciously or made an obvious mistake.
Existing laws allow gang members to be deported from the United States. However, these laws must pass immigration courts. Alien enemies bypass legitimate processes, such as appearing before immigrant judges.
What is the Trump administration’s basis for using alien enemy laws?
Under this law, the President detains, detains and detains people from “hostile countries or governments” without hearing that the United States is fighting during a war with that country or that the country “performs, attempts or threatens” an invasion or raid known as a “predatory invasion” on the United States.
Trump’s declaration made two seemingly contradictory arguments to prove that Tren de Aragua’s existence in the United States represents foreign invasion.
First, the declaration says that Tren de Aragua is acting as a quasi-government in Venezuelan territory where the Venezuelan government has “more control.”
The declaration also argues that Tren de Aragua “is in close tune with and indeed permeated with the Maduro regime.”
White House Press Secretary Caroline Leavitt said at a briefing on March 19 that Tren de Aragua was sent to the US by the Venezuelan government.
“The predatory invasion was what happened in Tren de Aragua. They were sent here by the hostile Maduro regime in Venezuela,” Levitt said.
In a column on March 17th, Harvard Law Professor Noah Feldman wrote: “In other words, the Trump administration claims that gangs are Venezuelan governments and that gangs are independent of Venezuelan governments.”
Trump has repeatedly said that without evidence that countries, including Venezuela, will empty their prisons and send people to the United States.
Tren de Aragua, a Venezuelan investigative journalist who grew and ran in prisons run by Venezuelan officials with government knowledge and published a book on Tren de Aragua, said in a March 18 interview. She added that she has not seen evidence that the gang responded to the Venezuelan government, was running or sent members of Tren de Aragua to the US.
Are undocumented immigrants only constitute the invasion?
Five legal experts who interviewed Politifact, as well as several other experts who wrote about the topic, say no.
“Treating immigrants as an “aggression” is simply wrong as a matter of law, facts and general decency,” said Notre Dame Law Professor Mary Ellen O’Connell. “The United States is not a war with Venezuela. Venezuela has not threatened or promised to invade the United States.”
It is one thing to rhetorically describe immigrants as invasions. “But once you reach the legal realm, words have meaning,” said Katherine Yong Ebright, a constitutional war power expert at the Brennan Center for Justice. “In the context of alien enemy law, invasion and predatory invasion referred to civil war or armed attacks by organized armies or paramilitary organizations.”
“If our government has evidence of a coordinated aggression into this country designed by foreigners, then it must have evidence. Otherwise it is fiction.”
What constitutes an invasion?
The Constitution uses the term “aggression” four times, and is related to national security, the federal war power, and narrow exceptions where states can engage in war. However, the Constitution does not define “aggression.” And the US Supreme Court has not ruled that point either.
Historical context and records place the intended meaning of “invasion” in the context.
The framer “consistently characterized it as a military invasion of US territory by a foreign state,” said Matthew Lindsay, a law professor at the University of Baltimore. He pointed to the writings of former President James Madison in 1800. “Aggression is a war operation. Protecting aggression is the exercise of the force of war.”
Legal experts pointed out that the alien enemy law (wars of 1812, World War I, and World War II) explains the differences between then and now. All previous invitations were during wartime.
Trump has not asked Congress to declare war, as did former President Franklin Delano Roosevelt after attacking Pearl Harbor.
“In fact, he hasn’t even identified an armed attack that triggers the laws of war,” Yong Ebright said.
Yong Ebright pointed out that Trump said the US was no longer invading. Trump posted on March 1st to the true society that “our country’s invasion is over.”
What did the court say about undocumented immigration and invasion?
In the 1990s, several states sued the federal government and were forced to put a financial burden on them, saying they were unable to protect them from undocumented immigrant aggression. Four district courts on appeal dismissed the case. The judge said the case could not control it because it dealt with political issues.
Federal courts generally refuse to control political issues. The topic of the constitution violates “the sole responsibility” to the enforcement or legislative departments, says Cornell University’s Institute of Legal Information.
The court did not rule in the 1990s on whether undocumented immigrants constituted the invasion, but one federal judge said in 1996 that the invasion had to be carried out by another state or foreign country and “clearly” did not happen.
In February 2024, after passing a law claiming Texas was invaded by immigrants, a federal judge ruled that “the surge in immigration does not constitute an “aggression” within the constitutional sense.” The case is pending after the state appeals the ruling.