A 3-judge panel of the Fifth Circuit (the most conservative in the land) arrogated to the courts the power to determine whether there is a declared war, or “any invasion or predatory incursion” being “perpetrated, attempted, or threatened,” 50 U.S.C. § 21...
That in an attempt to void Trump's forcible removal of Tren de Aragua (TdA) members from the US.
Not surprising: Bush 43 and Obama appointees wrote that opinion.
Also not surprising: they are wrong. From the dissent:
...For 227 years, every President of every political party has enjoyed the same broad powers to repel threats to our Nation under the Alien Enemies Act (“AEA”). And from the dawn of our Nation until President Trump took office a second time, courts have never second-guessed the President’s invocation of that Act. Not once. The reason is simple: Determining whether the AEA’s preconditions are satisfied—whether there is a declared war, or “any invasion or predatory incursion” being “perpetrated, attempted, or threatened,” 50 U.S.C. § 21—depends upon “matters of political judgment for which judges have neither technical competence nor official responsibility.” Ludecke v. Watkins, 335 U.S. 160, 170 (1948).
...
For President Trump, however, the rules are different. Today the majority holds that President Trump is just an ordinary civil litigant. His declaration of a predatory incursion is not conclusive. Far from it. Rather, President Trump must plead sufficient facts—as if he were some run-of-the-mill plaintiff in a breach-of-contract case—to convince a federal judge that he is entitled to relief.
That contravenes over 200 years of legal precedent. And it transmogrifies the least-dangerous branch into robed crusaders who get to playact as multitudinous Commanders in Chief....
It would be a shame if a dozen TdA members moved into the garage(s) of the two morons who wrote the majority opinion and commenced having their way with the women of those houses.
18 comments:
tet
“Also not surprising: they are wrong.”
No, they were right.
A group of Venezuelan citizens detained in Texas challenged their threatened removal to the same notorious foreign prison. In June 2025, CAC filed an amicus brief in the Fifth Circuit supporting their challenge. The brief explained that President Trump’s use of the AEA is unlawful because Tren de Aragua is not a “foreign nation or government” within the meaning of the AEA.
The lawmakers who passed the AEA in 1798 understood the terms “nation” and “government” to be defined by the law of nations, a set of international norms that governed foreign relations between nations at the time. The law of nations set two interrelated qualifications for any entity to be considered a nation or government: self-definition and foreign recognition. The entity had to hold itself as acting on behalf of a group of people living in a defined territory. It also had to be recognized by other nations as speaking on their people’s behalf on the international stage. These were the very qualities that the Founders thought were necessary for the American Revolution to turn thirteen colonies into a new nation.
The AEA’s history underscores why the Act can only be invoked against nations or governments that meet these qualifications. The AEA was passed in response to an ongoing conflict with one “foreign nation or government” in particular—the French Republic. In 1798, the United States was in the midst of a naval conflict, known as the Quasi War, with this erstwhile ally. In response, Congress passed the AEA and its counterpart, the notorious Alien Friends Act. The Alien Friends Act granted the President sweeping power to detain and expel any noncitizen deemed “dangerous to the peace and safety of the United States.” It was immediately attacked as unconstitutional and shortly thereafter allowed to lapse in disgrace.
The AEA, by contrast, was widely considered constitutional. The reason for this disparity was simple: the AEA was understood to be an extension of Congress’s power to declare war. During a state of war, as James Madison explained, Congress had the power “under the law of nations” to hold foreign citizens accountable for the belligerent actions of their home country. But only a nation or government under the law of nations—an entity that claimed the authority to act on its peoples’ behalf and was recognized as having that authority—could demand the sort of allegiance from its people that would justify holding them personally accountable for their sovereign’s actions during war.
This is a high bar. That is why the AEA has been invoked just three times: during the War of 1812, World War I, and World War II. And each time, the United States was in a state of war against an entity that both held itself out and was formally recognized as a sovereign nation or government acting on behalf of the people in its territory.
Tren de Aragua is not a “nation or government” within the meaning of the AEA. Tren de Aragua has never claimed to act on behalf of the inhabitants of a defined territory, and neither the United States nor any other nation has recognized it as having the authority to act on Venezuelans’ behalf. Quite the opposite—on his first day in office, President Trump designated the criminal cartel a “Foreign Terrorist Organization” that threatens the security of both Venezuela and the United States.
We shall see. Trump has evidently decided that "Tren" is the equivalent of a 'nation' for purposes of his action. On the issue, it is easy to see that "Tren" and, e.g., the Barbary Pirates are equivalent entities. They are certainly not 'subject to the jurisdiction' of ANY "nation," thus approaching "nationhood" simple.
One more thing: this is a matter of national defense. Lethal force is most certainly on the table. It is grotesquely persnickety to quibble over 'nationhood' when citizens of the US are being killed willy-nilly by an identifiable entity using means and methods observed as a clear pattern of behavior over the last dozen years. It is also what justifies sinking drug-carrier boats, by the way.
“On the issue…”
Nope.
Tren operates outside the law and in opposition to government control.
The Barbary Pirates operated with the official sanction of the semi-autonomous Barbary States (Algiers, Tunis, Tripoli, Morocco), which were vassals of the Ottoman Empire.
Major difference.
“One more thing: this is a matter of national defense”
Too broad.
“It is grotesquely persnickety to quibble over 'nationhood…”
The Founders were that way for a reason.
"Tren operates outside the law and in opposition to government control. "
You just defined "nation" by backing into it. They ARE a nation unto themselves. So what if they are not a member of the UN?
We will have to differ over whether "national defense" is too broad a term when tens of thousands of lives were taken and just as many more are at risk.
This is clearly where SCOTUS will have some sweat and tears.
“You just defined "nation" by backing into it”
Thanks for displaying your idiocy.
“They ARE a nation unto themselves. So what if they are not a member of the UN?”
The U.S. government has designated Tren de Aragua as a Transnational Criminal Organization. Clearly not a nation.
Meanwhile…
The actual flow of immigrants and emigrants is impossible to measure precisely in real-time. The U.S. doesn’t keep comprehensive records anymore on people who depart the country, and the Trump administration has stopped publishing regular data on deportations.
People living here illegally might enter and exit without leaving any statistical trace.
In a recent press release, Homeland Security Secretary Kristi Noem said 1.6 million unauthorized immigrants had left the U.S. in her first 200 days on the job. Spokesperson Tricia McLaughlin said in an email that figure “comes from our own numbers,” without providing detail.
However, Noem’s press release included a chart copied and pasted from the Center for Immigration Studies, a group that advocates for less immigration that recently estimated 1.6 million unauthorized migrants have left since January.
Statistical shenanigans. Cooking the books. That’s Trump.
The real idiot here is the one proposing that the Marquis' rules apply to mass-murderers. Only a Leftist or Libertarian could possibly argue that--regardless of "nation" status--the lowlifes who smuggle death into the country should be afforded the niceties of trials. Right-minded people understand that wars are often rather ugly affairs--and we accept that, nasty as it may be.
You, on the other hand, would prefer that a rapist be caught in the act with your daughter or wife before taking action--and then only the action of "Please stop while I call 911. Pretty please!!"
No doubt your women appreciate the niceties you afford the perp.
And--since you obviously missed the news--let me quote:
"....Is the criminal gang activity of Tren de Aragua “perpetrated, attempted, or threatened by a foreign nation or government?”
An extraordinary article published around the time of the President’s proclamation by Miami Herald investigative reporter Antonio Maria Delgado provides clear answers. Delgado interviewed a team of high-level investigators and analysts who have been following the Venezuelan regime for over ten years. The only team member to speak on the record is Gary Berntsen, among the most highly decorated CIA veterans in recent history.
One of us (Bart) spoke with Berntsen shortly after the article was published. He confirmed that Tren de Aragua was purposely sent to the United States to destabilize our country.
Antonio Delgado quoted Berntsen: “The Venezuelan regime has assumed operational control of these guys [Tren de Aragua] and has trained 300 of them; they have given them paramilitary training, training them to fire weapons and how to conduct sabotage. They have given them all like a four- to six-week course. They put these 300 guys through that course, and then they were deploying them into the United States to 20 separate states.”..."
https://floppingaces.net/most-wanted/tren-de-aragua-venezuelas-guerrilla-army-on-u-s-soil/
Too bad. So sad. The President is right and you are wrong.
Even without Venezuelan (Tripoli redux) control I would still forcibly deport these animals and shoot on sight the drug boats. YMMV of course.
When you resort to strawmen, you lose the argument, Dad29.
The President is wrong.
In May 2025, a declassified memo from the U.S. Office of the Director of National Intelligence contradicted these claims. The memo stated there was a near-unanimous consensus among intelligence agencies that the Maduro regime does not control Tren de Aragua or direct its movements to the U.S.. In fact, intelligence indicated that the Maduro regime views the gang as a threat.
“Even without Venezuelan (Tripoli redux) control I would still forcibly deport these animals”
We agree.
The problem was that the legal assumption was ALL of those arrested were gang members. That was not the case.
“and shoot on sight the drug boats.”
I agree in principle. But not as simple as you think.
Law Enforcement vs. Warfare: Experts argue that drug smugglers are typically treated as criminals with due process rights, not enemy combatants who can be killed on sight. Treating the issue as an "armed conflict" is seen by some as an attempt to justify the use of lethal military force.
Imminent Threat: Legal experts, including international law scholars, have stated that intentional killing outside of armed conflict is unlawful unless necessary to save a life. In the recent incident, no hostilities were occurring in the Caribbean at the time of the strike.
International Law: U.S. military actions in international waters could be challenged under international law, particularly if the vessel was registered to a specific country. While some officials have claimed a "law of armed conflict" justification, this is highly contentious.
When you cite "experts" you lose your case.
intentional killing outside of armed conflict is unlawful unless necessary to save a life
How many lives does Fentanyl take?
Let's not confuse things, either. Most Venezuelans are in the US under a Biden-signed EO granting them an exemption due to 'fear of retaliation' were they to be drop-kicked back home.
Trump signed an EO revoking that exemption. No court has the authority to change Trump's order, and it makes no difference if they are TdA or just tourist-class illegals.
The lawyers--and the courts--may go to Hell.
BTW, the video of the exploding boat..........are the "experts" certain that it recorded exactly what Trump/Hegseth SAID it recorded? Are YOU certain?? Or was this another example of Trump's brilliant use of theater?
See, e.g., Jackwad Chen's insurrection: https://www.breitbart.com/news/judge-temporarily-blocks-ending-tps-protections-for-venezuelans-haitians/
Strange: YOU claim that US intel absolves Maduro (i.e., the Venezuelan Government) from guilt. Yet the US AG directly contradicts that.
Attorney General Pam Bondi announced a $50million reward for information leading to the arrest of Maduro, saying he uses 'foreign terrorist organizations' to 'bring deadly drugs and violence into our country.' ...
...she said the Drug Enforcement Administration seized 30 tons of cocaine linked to Maduro and his associates and 7 tons of cocaine linked to the Venezuelan dictator personally.
Perhaps you should keep up with the news.
“When you cite "experts" you lose your case”
First, no need to put experts in quotes. Second, an argument is strengthened whew evidence comes from verified sources, which includes experts. Third, YOU yourself have cited experts to support your own position. Grow up.
“How many lives does Fentanyl take?”
Red herring.
“No court has the authority to change Trump's order”
Yes, executive orders are subject to judicial review and can be struck down or overturned by courts if they violate the Constitution, exceed the president's authority, or conflict with federal laws. Your temper tantrum is duly noted.
“YOU claim that US intel absolves Maduro (i.e., the Venezuelan Government) from guilt.”
Never said that. I quoted a source that said “the Maduro regime does not control Tren de Aragua or direct its movements to the U.S.” to contradict your claim that Tren meets the criteria of a nation.
“Yet the US AG directly contradicts that”
Isn’t that an expert? I thought you said when cite them, you lose the case.
No use discussing this--or anything--with a TDS-deranged mind.
You’re too stubborn to admit you’re wrong.
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