The Trump administration’s bombings of alleged drug boats in the Caribbean rest on dubious legal authority, as the latest “double-tap” scandal has highlighted. So it would be peculiar if those bombings actually unlock more powers for the president domestically. But that’s the implication of a new brief the administration just submitted in ongoing litigation over the Alien Enemies Act.
To review the case: In March, President Donald Trump invoked the 1798 law, which gives him special deportation powers when the United States is at war or facing an “invasion or predatory incursion” by another country. Trump said Venezuela’s Tren de Aragua gang (TdA) had invaded the United States. Without due process, the Department of Homeland Security promptly flew about 130 Venezuelans it said were members of the gang from Texas to a prison in El Salvador.
In September, the federal appeals court covering Texas said the administration had overreached by invoking the Alien Enemies Act. It said the law — last invoked during World War II — was meant for situations of actual military conflict. Whatever the threat from Venezuela or TdA, the judges reasoned, it did not rise to that level.
But in the days before that opinion came down, the Trump administration began moving naval assets toward Venezuela. It also conducted its first attack on a suspected Venezuelan drug-running boat. Could those actions have been part of an effort to change the legal calculus around the Alien Enemies Act and the president’s deportation powers? We wrote at the time: “Watch for these hostilities, and any escalations, to make it into the government’s brief as the case is appealed.”
The government’s new brief — this time before the full Fifth Circuit Court of Appeals, rather than a three-judge panel — emphasizes the ways the administration has upped the military ante with Venezuela. “Since the panel decision,” the brief says, “tensions between the United States and the Maduro regime have escalated. In September, the President announced that the United States had conducted a targeted strike in the Caribbean against a narcoterrorist boat manned by TdA members,” as well as “other strikes against narcoterrorist boats in the region.” It adds: “The Secretary of War also deployed an aircraft carrier group to the region. Maduro, in turn, has mobilized the military and armed civilians.”
The implication: Even if the U.S. wasn’t in a warlike posture with Venezuela when Trump first invoked the Alien Enemies Act, it sure is now — so the administration should win the case.
That argument has its own problems. For one, the Trump administration’s submission to Congress about its Caribbean boat strikes insisted the U.S. is in a “non-international armed conflict” with drug cartels. But the Alien Enemies Act contemplates an international armed conflict — that is, a conflict between two nations. And the Trump administration has yet to launch military strikes against the Venezuelan government.
Whatever the legal technicalities, the new brief is politically illuminating. It shows how the Trump administration’s hawkish but ill-explained Venezuela policy is legally intertwined with its aggressive deportation agenda. Voters can judge both accordingly.
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