There is a maxim, Inter arma enim silent leges, meaning “In times of war, the law falls silent.” Its embodiment is in the last remaining vestige of the dreaded Alien and Sedition Acts, the Alien Enemies Act of 1798, which authorizes a president, in times of war, to take action against the soldiers of a foreign government engaged in acts of war against the United States. It was this law invoked by Executive Proclamation that Trump loaded five Venezuelans on planes. They were, he said, member of the Tren de Aragua.

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.

Are we at war with Venezuela? Did Venezuela “invade” the United States? Are these “thousand of members” soldiers of the Maduro regime? Were the five Venezuelans even members of this gang? Probably, but given that they were denied any hearing and we have nothing to go on but Trump’s say-so, who knows? Trump knows, according to Trump.

I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. … [B]y 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.

Regardless, the Alien Enemies Act had only been invoked three times prior to Trump, and we were at war in each instance. Not this time, so District of Columbia Chief Judge James Boasberg swiftly issued a temporary restraining order to stop the government, order the flight to be turned around and the five Venezuelans returned to the United States. Initially, the injunction applied  only to Venezuelans in custody, but it was expanded to all non-citizens to whom Trump’s invocation of the AEA would apply.

The government was not pleased.

Shortly after Boasberg’s minute order detailing the hearing’s outcome was posted on the docket later Saturday night, the Justice Department announced it is appealing the order to the U.S. Court of Appeals for the D.C. Circuit. TROs are not generally appealable due to their time-limited nature and their purpose being to preserve the status quo, but the Justice Department in the new Trump administration has already sought — unsuccessfully — to appeal and/or stay multiple TROs.

Contrary to the whims of the unduly passionate, the problem isn’t whether bad dudes can be deported, or whether this narco-gang are bad dudes. It’s not even whether the five Venezuelans on the plane were members of TdA and the very sort of really bad dudes who should be deported. Even if we assume all of the foregoing to be true and correct. it does not address the overarching question of whether the United States is at war with Venezuela or whether TdA, as a Venezuelan military force, has invaded the United States, If not, then the AEA does not come into play and the wartime authority granted the president is not available to Trump. In other words, deport them all you want, but only after utilizing the lawful process for deportation that would otherwise apply to anyone.

The government’s argument is that the AEA not only gives the president the authority to act without resort to due process, but that the courts have no jurisdiction to question the president’s invocation of the AEA when he, in his sole discretion, deems the nation to be under invasion. As long as he utters the word “invasion,” the power of the Alien Enemies Act is his to use and courts have nothing to say about it. And the Executive Proclamation recognizes this hurdle and tries to leap it.

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.

No matter how many times Trump uses the word “invade,” it does not turn TdA into a foreign government actor engaged in a military invasion of the United States in an act of war.

Even if the administration is right to claim that Tren de Aragua has some connections to Venezuelan government officials, that does not mean the gang is itself a nation-state. Lots of organized crime groups bribe or otherwise suborn government officials to facilitate their black market activities. That doesn’t turn these drug cartels into governments, nor does it convert their criminal activities into an “invasion.”

This isn’t to say that proven members of TdA aren’t bad dudes and shouldn’t be deported. It’s only to say that Trump can’t invoke wartime authority to circumvent the courts and due process to put people on a plane and deport them at will.