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I have suggested before that one of the most interesting developments in the current presidency of Mr. Trump, is the transformation of the meaning of invasion, and the application of Presidential authority in light of that expansion of understanding of the term (The
Meaning of "Invasion" in the Current Era of Historical Development: Mr.
Trump Issues a Proclamation--"Guaranteeing the States Protection
Against Invasion"; an Executive Order "Protecting the American People
Against Invasion"; and Others).
Far more interesting is the Trump Administration's willingness, more directly than one might have though possible (or prudent), to confront the conceptual issue of invasion. In the process the Trump Administration has foregrounded a compelling challenge for modern states--the need to shake the cobwebs off of the ancient and now quaint notions attached like barnacles on a sick turtle, to the body of the State. More specifically, the Trump Administration has embraced quite directly the idea that the concept of invasion: (1) is not a monopoly of states (an 18th and 19th century conceit, wrapped in norm and veils the ideal it represents about the state system); (2) need not be hierarchically managed, that is that one can accept and respond to invasion an an anarchic movement--that is as an ordered movement without a center; contrast chaos); (3) must be understood under certain conditions (not defined except by reference, for the moment, to current conditions on the southern border of the United States) as acts of war; (4) may be understood, under certain circumstances (to be defined) even when presented as the product of anarchic convergence of actions by reference to those undertaking direction of these movements, especially where such organizations may be designated under the law as terrorist fronts; (5) may be understood, under certain circumstances, as instruments of foreign states or other non-state apparatus and can, thus connected, serve as a basis for action against the entire command and control hierarchy of invasion; and (6) creates conditions that, under certain circumstances, can be used to designate portions of the territory of the United States as within zones of conflict within which the authority of the federal political branches changes. To a large extent, invasion has become a conceptual challenge, but one for which societies have long developed a conceptual leading force in the games that we play and in the way in which common understandings are naturalized in sport, for example, and tech. (The Meaning of "Invasion" in the Current Era of Historical Development: , supra).
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One thing that has emerged clearly is an intention to challenge the narratives of migration embraced quite strongly in the aftermath of the Second World War of the 20th Century, and with it, an aligned narratives of the fundamental difference in act and intent that separates state actors from other collectives. Underlying all of that is a challenge to the broad understanding and application of the lessons of Korematsu v. United States, 323 U.S. 214 (1944), on which a powerful and broad narrative has also been built, much of it constructed from out of an essentializing racism at the root of the broad orders from out of which the case emerged. That will depend, in large part, on the detachment of collective action by people from states.
By order dated 15 March 2025 and entitled Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua, Mr. Trump has declared that all of these conditions now apply to the non-state actor Tren de Aragua, allied to Mr. Maduro of Venezuela who is described as the head of another criminal enterprise, this time purporting to constitute the lawful government of Venezuela, and propped up through its relationships with other criminal enterprises ("Over the years, Venezuelan national and
local authorities have ceded ever-greater control over their territories
to transnational criminal organizations, including TdA. The result is a
hybrid criminal state that is perpetrating an invasion of and predatory
incursion into the United States, and which poses a substantial danger
to the United States." Ibid.). The description suggests a movement away from the carefully crafted, privileging, and static, construction of global political orders around the concept of a state--a semiotic object, the objectivity of which was singular to it, into which an ideology of political authority could be poured.
In response, the President issued an order with multiple tasks. The first was a declaration that the amalgam of which Tren de Aragua is a part, but TdA in particular, is an agent or instrument of "invasion or predatory incursion." (Ibid., § 1). That is a curious descriptor. An enhanced definition of invasion to include non-state actors exercising power and action (invasion) which once, by definition (though not in fact) could only be a consequences of the action of states, might be argued to be in accord with the times (as it might have been in the 3rd century from a Roman perspective.--the modern echo of which is in so-called settler colonialism, though the colonialist part is subject to contestation). The reference to predatory incursion, however, might hold substantially more interest from the perspective of triggering state reaction and countermeasures., and protecting the legality of some if not all of the order's mandates. That term suggests intent (predation--attacking or plundering in the manner, perhaps of the bandit gangs in in the movie "The Magnificent Seven") and action (incursion). Thus to engage in predatory incursion with the effect or consequences of an invasion, any collective force (however constituted and however manifested) need to intend to attack or plunder, and to realize that intention by crossing a national border.
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Section 2 then directs the "Attorney General, within 60 days of the date of this proclamation, to prepare and publish a letter under her signature declaring the policy described in section 1 of this proclamation" to every federal judge in the U.S. That appears to be a necessary predicate to the action ordered in § 3, to "direct that all Alien Enemies described in section 1 of this proclamation are subject to immediate apprehension, detention, and removal, and further that they shall not be permitted residence in the United States." This is to be undertaken or directed by the Attorney General and the Department of Homeland Security under the terms of § 4, to which the cooperation of the American government apparatus is sought (Ibid., § 5). Section 6 then declares a broad intent to deploy all police resources to the task.
The Attorney General and the Secretary of Homeland Security are authorized to take all necessary actions under the Alien Enemies Act to effectuate this proclamation, consistent with applicable law. In doing so, and for such purpose, they are authorized to utilize agents, agencies, and officers of the United States Government and of the several States, territories, dependencies, and municipalities thereof and of the District of Columbia.
The Order ends with a four part direction: (1) "No Alien Enemy described in section 1 of this proclamation shall enter, attempt to enter, or be found within any territory subject to the jurisdiction of the United States." (§6(a)); (2) "Alien Enemies apprehended pursuant to this proclamation shall be subject to detention until removed from the United States" (§6(b)); (3) "Alien Enemies shall be subject to removal to any such location as may be directed by the officers responsible for the execution of these regulations" (§ 6( c)); and (4) "All property in the possession of, or traceable to, an Alien Enemy, which is used, intended to be used, or is commonly used to perpetrate the hostile activity and irregular warfare of TdA, along with evidence of such hostile activity and irregular warfare, shall be subject to seizure and forfeiture" (§6(d)). Mass round up, mass removal, mass detention before removal, and mass forfeiture of property used in connection with invasion or predatory incursion. That is the essence of the order.
It is likely to be litigated in whole or in part, but unlikely to have much effect until the process begins.
The Alien and Enemies Act is the last of the four Alien and Sedition acts, the other three which have been repealed or expired. It allows the president to detain, relocate or deport non-citizens from a foreign nation or government considered an enemy during wartime. The last time the act was invoked was WWII, during which 31,000 suspected enemy aliens of mostly Japanese, Italian and German descent were placed in internment camps and military facilities. The law requires war to be formally declared — which only Congress has the authority to do. (Trump enacts [sic, invokes] a 1790s law to target 'alien enemies' for detention and deportation).
And indeed, the war between Mr. Trump and elements of the non-state sector and the federal judiciary wasted no time in setting these challenges in motion.
James E. Boasberg, chief judge for the U.S. District Court for the District of Columbia, said he needed to issue his order immediately because the government was already flying migrants it claimed were newly deportable under Trump’s proclamation to El Salvador and Honduras to be incarcerated there. “I do not believe I can wait any longer and am required to act,” he said during a Saturday evening hearing in a lawsuit brought by the ACLU and Democracy Forward. “A brief delay in their removal does not cause the government any harm,” Boasberg added, noting they remain in government custody. (Trump invokes 18th century law to speed deportations, judge stalls it hours later; see also Venezuelan immigrants sue Trump over order to invoke wartime Alien Enemies Act of 1798 ("Boasberg also appeared to indicate that any deportation flights that were currently in the air with migrants subject to this order on board should be returned to the U.S. ")).
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Critical to this litigation will be a war of narratives. One will wrap the acts up with the incarcerations of the Second World War thereafter repudiated. The other will look back to an earlier narrative of invasion. Underlying both will be a likely avoided discussion of the character of migration as a function of historical episodes, its corruption out of fear, and the normative basis for engagement. But also critical will be the interpretive wars around the key words- of §21 of the Act "natives, citizens, denizens, or subjects of the hostile nation or government." Broadly read they may be a basis for the Presidential declaration (assuming no abuse of discretion); but a narrower reading, one more closely tied to the classical ideology of the state (as fully developed around the middle of the last century) would undo this declaration. Note as well that even if the declaration is sufficient a host of issues will emerge around the methods and practices of rounding up, detaining, and deporting people; and more importantly perhaps, around the way the state treats those it unjustly or illegally rounds up, detains, and deports. It is in that context that Korematsu might find a basis for application in this new era.
The full text of the Executive Order, Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua, is set out below along with the text of the Alien Enemies Act (1798):
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BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Tren de Aragua (TdA) is a designated
Foreign Terrorist Organization with thousands of members, many of whom
have unlawfully infiltrated the United States and are conducting
irregular warfare and undertaking hostile actions against the United
States. TdA operates in conjunction with Cártel de los Soles, the
Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in
Venezuela, and commits brutal crimes, including murders, kidnappings,
extortions, and human, drug, and weapons trafficking. TdA has engaged in
and continues to engage in mass illegal migration to the United States
to further its objectives of harming United States citizens, undermining
public safety, and supporting the Maduro regime’s goal of destabilizing
democratic nations in the Americas, including the United States.
TdA is closely aligned with, and indeed
has infiltrated, the Maduro regime, including its military and law
enforcement apparatus. TdA grew significantly while Tareck El Aissami
served as governor of Aragua between 2012 and 2017. In 2017, El Aissami
was appointed as Vice President of Venezuela. Soon thereafter, the
United States Department of the Treasury designated El Aissami as a
Specially Designated Narcotics Trafficker under the Foreign Narcotics
Kingpin Designation Act, 21 U.S.C. 1901 et seq. El Aissami is currently a
United States fugitive facing charges arising from his violations of
United States sanctions triggered by his Department of the Treasury
designation.
Like El Aissami, Nicolas Maduro, who
claims to act as Venezuela’s President and asserts control over the
security forces and other authorities in Venezuela, also maintains close
ties to regime-sponsored narco-terrorists. Maduro leads the
regime-sponsored enterprise Cártel de los Soles, which coordinates with
and relies on TdA and other organizations to carry out its objective of
using illegal narcotics as a weapon to “flood” the United States. In
2020, Maduro and other regime members were charged with narcoterrorism
and other crimes in connection with this plot against America.
Over the years, Venezuelan national and
local authorities have ceded ever-greater control over their territories
to transnational criminal organizations, including TdA. The result is a
hybrid criminal state that is perpetrating an invasion of and predatory
incursion into the United States, and which poses a substantial danger
to the United States. Indeed, in December 2024, INTERPOL Washington
confirmed: “Tren de Aragua has emerged as a significant threat to the
United States as it infiltrates migration flows from Venezuela.”
Evidence irrefutably demonstrates that TdA has invaded the United States
and continues to invade, attempt to invade, and threaten to invade the
country; perpetrated irregular warfare within the country; and used drug
trafficking as a weapon against our citizens.
Based upon a review of TdA’s activities,
and in consultation with the Attorney General and the Secretary of the
Treasury, on February 20, 2025, acting pursuant to the authority in 8
U.S.C. 1189, the Secretary of State designated TdA as a Foreign
Terrorist Organization.
As President of the United States and
Commander in Chief, it is my solemn duty to protect the American people
from the devastating effects of this invasion. NOW, THEREFORE, I, DONALD
J. TRUMP, President of the United States of America, by the authority
vested in me by the Constitution and the laws of the United States of
America, including the Alien Enemies Act, 50 U.S.C. 21 et seq., hereby
proclaim and direct as follows:
Section 1.
I find and declare that TdA is perpetrating, attempting, and
threatening an invasion or predatory incursion against the territory of
the United States. TdA is 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. I make these findings using the full extent of my
authority to conduct the Nation’s foreign affairs under the
Constitution. Based on these findings, and by the authority vested in me
by the Constitution and the laws of the United States of America,
including 50 U.S.C. 21, I proclaim that all Venezuelan citizens 14 years
of age or older who are members of TdA, are within the United States,
and are not actually naturalized or lawful permanent residents of the
United States are liable to be apprehended, restrained, secured, and
removed as Alien Enemies. I further find and declare that all such
members of TdA are, by virtue of their membership in that organization,
chargeable with actual hostility against the United States and are
therefore ineligible for the benefits of 50 U.S.C. 22. I further find
and declare that all such members of TdA are a danger to the public
peace or safety of the United States.
Sec. 2.
I direct the Attorney General, within 60 days of the date of this
proclamation, to prepare and publish a letter under her signature
declaring the policy described in section 1 of this proclamation as the
policy of the United States and attaching this proclamation. I direct
the Attorney General to transmit this letter to the Chief Justice of the
United States, the chief judge of every circuit court of appeals, the
chief judge of every district and territorial court of the United
States, each Governor of a State and territory of the United States, and
the highest-ranking judicial officer of each State and territory of the
United States.
Sec. 3.
I direct that all Alien Enemies described in section 1 of this
proclamation are subject to immediate apprehension, detention, and
removal, and further that they shall not be permitted residence in the
United States.
Sec. 4.
Pursuant to the Alien Enemies Act, the Attorney General and the
Secretary of Homeland Security shall, consistent with applicable law,
apprehend, restrain, secure, and remove every Alien Enemy described in
section 1 of this proclamation. The Secretary of Homeland Security
retains discretion to apprehend and remove any Alien Enemy under any
separate authority.
Sec. 5.
All executive departments and agencies (agencies) shall collaborate
with law enforcement officials of the United States and with appropriate
State, local, and tribal officials, to use all lawful means to
apprehend, restrain, secure, and remove Alien Enemies described in
section 1 of this proclamation.
Sec. 6.
Pursuant to my authority under 50 U.S.C. 21 to direct the conduct to be
observed on the part of the United States toward the Alien Enemies
subject to this proclamation, to direct the manner and degree of the
restraint to which such Alien Enemies shall be subject and in what
cases, to provide for the removal of such Alien Enemies, and to
establish any other regulations which are found necessary “in the
premises and for the public safety,” I hereby direct the Attorney
General and the Secretary of Homeland Security to execute all the
regulations hereinafter contained regarding the Alien Enemies described
in section 1 of this proclamation. The Attorney General and the
Secretary of Homeland Security are further directed to cause the
apprehension, detention, and removal of all members of TdA who otherwise
qualify as Alien Enemies under section 1 of this proclamation. The
Attorney General and the Secretary of Homeland Security are authorized
to take all necessary actions under the Alien Enemies Act to effectuate
this proclamation, consistent with applicable law. In doing so, and for
such purpose, they are authorized to utilize agents, agencies, and
officers of the United States Government and of the several States,
territories, dependencies, and municipalities thereof and of the
District of Columbia. All such agents, agencies, and officers are hereby
granted full authority for all acts done by them in the execution of
such regulations when acting by direction of the Attorney General or the
Secretary of Homeland Security, as the case may be.
Pursuant to the authority vested in me by
the Constitution and the laws of the United States of America,
including the Alien Enemies Act, 50 U.S.C. 21 et seq., I hereby declare
and establish the following regulations which I find necessary “in the
premises and for the public safety”:
(a) No Alien Enemy described in section 1
of this proclamation shall enter, attempt to enter, or be found within
any territory subject to the jurisdiction of the United States. Any such
Alien Enemy who enters, attempts to enter, or is found within such
territory shall be immediately apprehended and detained until removed
from the United States. All such Alien Enemies, wherever found within
any territory subject to the jurisdiction of the United States, are
subject to summary apprehension.
(b) Alien Enemies apprehended pursuant to
this proclamation shall be subject to detention until removed from the
United States in such place of detention as may be directed by the
officers responsible for the execution of these regulations.
(c) Alien Enemies shall be subject to
removal to any such location as may be directed by the officers
responsible for the execution of these regulations consistent with
applicable law.
(d) All property in the possession of, or
traceable to, an Alien Enemy, which is used, intended to be used, or is
commonly used to perpetrate the hostile activity and irregular warfare
of TdA, along with evidence of such hostile activity and irregular
warfare, shall be subject to seizure and forfeiture.
The Attorney General is further granted
authority, pursuant to the Alien Enemies Act and 3 U.S.C. 301, in
consultation with the Secretary of Homeland Security, to issue any
guidance necessary to effectuate the prompt apprehension, detention, and
removal of all Alien Enemies described in section 1 of this
proclamation. Any such guidance shall be effective immediately upon
issuance by the Attorney General.
This proclamation and the
directives and regulations prescribed herein shall extend and apply to
all land and water, continental or insular, in any way within the
jurisdiction of the United States.
IN WITNESS WHEREOF, I have hereunto set my hand this
fourteenth
day of March, in the year of our Lord two thousand twenty-five, and of
the Independence of the United States of America the two hundred and
forty-ninth.
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