THE TdA REMOVALS DRAMA AND JUDGE BOASBERG—WHO GETS TO DECLARE A “PREDATORY INCURSION,” AND WHO GETS TO PROTECT OUR NATIONAL INTERESTS?
INTRODUCTION
It appears that the opposition to the President’s Proclamation based on and in reliance upon the Alien Enemies Act overlooks, in convenient fashion, key issues necessary to a real analysis of this prima facie permissible exercise of Executive authority. This includes:
- A failure to engage in honest statutory construction and the emphasis on the “declaration of war” as the sole basis for the enactment to have effect and trigger Presidential action.
- The citation in the Proclamation of ALL of the Article II powers available to the President to regulate foreign affairs when they intersect with immigration enforcement and not reliance exclusively upon the Alien Enemies Act.
- The declaration of Tren de Aragua as a global terrorist organization by the Secretary of State engaged in actions that pose a direct threat to the security of our nation.
- The ability of the President as Commander in Chief of the Armed Forces to share in some respects the ability to introduce United States forces to protect vital national interests and, yes, to declare “enemies.”
It is not contended herein that the issue is settled, and the Fifth Amendment guarantees of Due Process for those irresponsibly brought into this country unvetted may well carry the day as the Supreme Court sets forth the guardrails of procedure for the removal of criminal aliens associated with the hostile actions of a foreign government literally under indictment. Use of the Act alone can be reasonably seen as a heavy and risky lift. The Court may ultimately determine that the Act is not applicable in the instant immigration scenario, as the subjects of the Proclamation were allowed on United States soil. It may also vindicate Article II powers by declining review, determining that the issue is a political one that is not subject to judicial review. I do, however, believe that the invocation of the Act in conjunction with ALL the President’s authority to secure the Borders and protect the national security is the lawful action of a vigorous Executive in the Hamiltonian vision to use all the tools necessary to protect the security and economy of the nation.
HISTORICAL GLOSS VESTS IN THE PRESIDENT SIGNIFICANT AUTHORITY IN THE CONDUCT OF FOREIGN RELATIONS AND NATIONAL SECURITY, ESPECIALLY WHEN THERE IS AN OVERLAP WITH IMMIGRATION
The convenient interpretation of the Alien Enemies Act by some commentators assumes with broad strokes that the enactment is solely wrapped up in Congress’s Declare War authority. The foundation for this short-sighted analysis is that only Congress can define who is “the enemy” and that the President’s wide-ranging and non-reviewable authority under the Act regarding the manner of removal of “enemy aliens” ONLY commences then. Forged in the uncertain period in our history when we were on the verge of war with France, the Act was designed to prevent non-citizens sympathetic to the French from engaging in potentially hostile actions in the United States. War, in fact, was never declared, and the actions of the U.S. Navy were primarily directed to intercept French-sponsored privateers in the Caribbean. The President, as Commander in Chief, directed these actions, and the so-called Quasi War was ultimately ended by Treaty. In the centuries following, a formal declaration of war has only been invoked a few times, yet Presidents have indeed defined who is “the enemy” and introduced forces into hostilities before and after the War Powers Resolution of 1973 with either Congressional acquiescence or implied consent.
To be sure, in several opinions of the Office of Legal Counsel of the Attorney General’s Office and the U.S. Department of Justice, the independent authority of the President to identify “important national security interests” and commit troops abroad without specific authorization from Congress has been supported. This has derived from the President’s “unique responsibility” as Commander in Chief and Chief Executive for “foreign and military affairs” as well as for national security. The Constitution divides authority over the military between Congress and the President. U.S. Const. Art. 1, Section 8, cl. 1, 11-14. The Supreme Court has interpreted Article II as conferring the vast share of responsibility for the conduct of our foreign relations on the Chief Executive, holding independent authority in the areas of foreign policy and national security. Using just recent examples, Presidents have exercised initiatives broadly: the Reagan era Libyan bombings, Clinton in Somalia and Bosnia, justifying both on both foreign affairs and national security concerns; Obama in Libya; Trump hitting targets in both Presidencies; and even Biden engaging in ineffectual uses of force to engage the Houthis. American military members have been in harm’s way in Syria and Iraq for years, as well as in Africa. I say this not because the Proclamation involving Tren de Aragua involves the deployment of the military per se but because the President has the authority to define who the “enemy is” and to take steps to remove them or engage them.
THE FOREIGN AFFAIRS AUTHORITY OF THE PRESIDENT IS A POLITICAL ACT NOT SUBJECT TO REVIEW BY THE JUDICIARY, AND THIS PROCLAMATION COMBINES FOREIGN AFFAIRS, NATIONAL SECURITY, AND IMMIGRATION
In a long line of cases, the Supreme Court has laid down the rule that foreign affairs and decisions upon foreign policy are matters that are political in nature and entrusted by the Constitution to the political departments of the Government and that the judiciary has no part in them. On February 6th, 2025, Secretary of State Marco Rubio helped us define “who the enemy is.” In the Code of Federal Regulations at Public Notices 12671 and 12672, Tren de Aragua and its members were deemed Global Terrorist Organizations and foreign persons who “have committed or have attempted to commit acts of terrorism that threaten the security of United States nationals or the national security, foreign policy, or economy of the United States.” The members of this Organization as well as others, have been allowed into this country but under conditions of a lack of vetting. This Trojan Horse has been sent here by a rogue Venezuelan government literally unrecognized and under indictment by the last two Administrations and certainly the current one. In the Proclamation regarding Tren de Aragua, the President marshals some of the intelligence that is nonclassified regarding the state sponsorship of TdA and its destructive objectives in this hemisphere to destabilize democracies. Here we have Homeland Security, the Department of State, and the intelligence capabilities of this nation guiding the President’s hand. Military assets, including ships and surveillance aircraft, are gathering intelligence undoubtedly to guide actions against the cartels with or without the cooperation of the Mexican government. The deployment of assets to engage this hostile entity would be within the sole province of the Executive. Undeniably, there is an intersection of foreign affairs as well as the removal of dangerous enemy aliens from our midst. The Supreme Court has long recognized that there is inevitably some overlap in the field of immigration law. In Knauff v. Shaughnessy, a 1950 case that has been cited frequently since, the Court stated:
“the exclusion of aliens is a fundamental act of sovereignty that does not alone stem from legislative power but is inherent in the executive power to control the foreign affairs of the nation.”
The key question will be whether REMOVING vice EXCLUDING criminal and enemy aliens from our midst is controlled by Congress or the President. A strong argument can be made that given the Proclamation and the action of the Secretary of State, the utilization of war powers and foreign affairs powers supersedes any question of alienage or immigration laws in the removal process. Finally, the Courts should not even have the ability to question the findings of the Executive and substitute its judgement for the Executive because the ACLU says so. Wrong.
Mr. Justice Jackson, writing for the Supreme Court in the Chicago & Southern Air Lines case, stated the proposition in succinct, quotable terms. He wrote:
“The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities, nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”
Judge Boasberg not only does not get to second guess the President and the Secretary of State on a delicate matter of the interconnectedness of TdA and the political objectives of the Maduro regime and its Chinese and Russian supporters. He does not get to conduct foreign affairs and intelligence gathering.
THE PROCLAMATION INVOKES THE CONSTITUTION AND LAWS OF THE UNITED STATES IN SUPPORT OF THE TdA REMOVALS AS WELL AS THE ALIEN ENEMIES ACT, AND THE PRESIDENT CAN CERTAINLY PROCLAIM A PREDATORY INCURSION
It is my hope that the Department of Justice invokes all the plenary powers of the Executive to remove declared foreign terrorist actors from our midst. However, as I have urged in a previous submission, the simple statutory text of the Alien Enemies Act, when considering the overlapping powers of the Congress and the President in “war powers,” should allow the Proclamation and the expedited removal. The relevant text states as follows:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President of the United States shall make public proclamation of the event…”
Congress has the sole power to declare war, but as discussed above, in many instances, the Executive, including Presidents in both parties, have disputed that it has the sole power to deploy military forces. Since then, courts have declined to decide direct challenges to the President’s authority to so deploy forces. These have largely been based upon the political question doctrine discussed above. The Proclamation establishes that a foreign government is unleashing its criminal gangs, associated with state actors in Venezuela, to engage in destabilizing acts in the United States in an irregular war, or more specifically, a predatory incursion. Analogous situations have arisen wherein the Fourth Amendment and its policies are harmonized with modern technologies that can be wielded to invade areas where there is an expectation of privacy. The courts have not been deterred in analyzing the newer methods and protecting privacy. This is no different. A 1798 law still sets forth various situations upon which the Chief Executive might protect the national interest. In the modern era there are governmental sponsors of proxies that have a mission to engage us domestically and abroad. Different types of limited warfare have become the norm given the destruction guaranteed in all-out conflict. In interpreting statutory language, the Supreme Court has stated that the use of “or” generally means in the disjunctive sense, and clearly the new Congress did not limit the President’s authority to ONLY declared wars. Unless a reviewing court states that the overriding intent is established in the first “declared war” introductory language and construes the Act as being limited by the Declare War prefatory clause, it is certainly arguable that the “or” speaks to a different national security issue over which the President has plenary Constitutional power. In fact, it allows the president to proclaim publicly the event. That is what our President did. By not choosing the safer route of immigration removal, for which there would be delay and cost, the Executive has thrown down an important gauntlet. The Supreme Court removed any doubt about the breadth of the Act in Ludeke v. Watkins, cited in a previous edition of this blog:
“The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons, appears to me to be as unlimited as the legislature could make it.” The very nature of the President’s power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. This view was expressed by Mr. Justice Iredell shortly after the Act was passed, Case of Fries, 9 Fed. Cas. No. 5126, and every judge before whom the question has since come has held that the statute barred judicial review. We would so read the Act if it came before us without the impressive gloss of history.”
CONCLUSION
The Article II authority of the President acting alone and with his Secretary of State is not limited to removal under the Alien Enemies Act. He clearly cites that TdA members are a threat to the national security of the United States and acts consistent with the Constitution and laws of the United States as well as the Act. Given the overlap in war powers as established by the gloss of history and the actions of several Presidents since the passage of the War Powers Resolution in 1973, there should be no question that the President and those before him have declared “enemies” and have deployed the military to engage them. This is ongoing. Congress, right or wrong, has given implied consent in every instance even where it has been apparent that the President’s deployments have far exceeded the Authorizations for the Use of Military Force targeting Iraq and Al Qaeda. Establishing the ground rules with a foreign foe, Venezuela, and a government we do not recognize is intertwined with removing those who act in concert with such foreign power. These are nonjusticiable political questions. Judge Boasberg and the ACLU have no such power.
Mike Imprevento
March 24th, 2025
