In the absence of military hostilities, the administration will have to concede that the Constitution still governs its deportation program.
The Trump administration thought it had a reasonable basis for ignoring the due process petitions of Venezuelan nationals subject to deportation. These are not mere illegal migrants, it argued. Rather, they are combatants prosecuting a foreign invasion of the United States.
As Andy McCarthy wrote, that was the basis for its effort to invoke the 1798 Alien Enemies Act in the effort to expedite the deportations of individuals it accuses of affiliating with the Tren de Aragua gang. The AEA had been successfully invoked only three times — the War of 1812, World War I, and World War II — within the context of a congressionally declared war. The Trump administration argued that, save the congressional declaration, the circumstances that prevail today are not all that distinct from those that typify wartime. Tren de Aragua’s gang members are acting as agents of Venezuela’s Maduro regime, carrying out an “invasion” and “predatory incursion” into the United States.
That outlook comports with the rhetoric from the administration’s highest echelons. Attorney General Pam Bondi said that the gang was a “foreign arm of the Venezuelan government” that had “invaded our country.” Trump himself maintained that Tren de Aragua “is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus.” This isn’t an immigration crisis; it’s a hostile military operation. The regime’s agents therefore cannot and should not be able to take advantage of legal niceties like habeas petitions.
A classified assessment recently composed by the National Intelligence Council contradicts the rationale that Trump’s solicitors have cited to justify their deportation program. “It repeatedly stated that Tren de Aragua, a gang that originated in a prison in Venezuela, is not coordinated with or supported by the country’s president, Nicolás Maduro, or senior officials in the Venezuelan government,” the Associated Press reported. “While the assessment found minimal contact between some members of the gang and low-level members of the Venezuelan government, there was a consensus that there was no coordination or directive role between gang and government.”
While that assessment is informed by the view shared by most of the 18 organizations that make up the U.S. intelligence community, the Federal Bureau of Investigation dissented from the report’s conclusion. On Sunday, FBI Director Kash Patel reaffirmed his agency’s commitment to the assessment that Trump’s Venezuelan deportation targets are Maduro regime cutouts:
As a legal argument, the appeal of the notion that immigration isn’t as much a matter for law enforcement but a function of U.S. foreign policy and thus less subject to judicial scrutiny is comprehensible. It’s a clever argument, but not a compelling one. The United States may one day have to confront the Maduro regime militarily, but that day is not today. And given the absence of observable military hostilities between Washington and Caracas, the administration will have to concede that the Constitution still governs its deportation program.