As justification for deporting some immigrants in the country without due process, President Donald Trump said the United States is under invasion.
“Evidence irrefutably demonstrates that [Tren de Aragua] has invaded the United States,” a March 15 White House proclamation said. Tren de Aragua is a Venezuela-based gang with some US presence.
The proclamation says Tren de Aragua “is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States”, and so any person 14 years or older who is a Tren de Aragua member and who has neither US citizenship nor permanent residency can be arrested and deported using the 1978 Alien Enemies Act.
Trump and his allies have referred to undocumented immigration as an invasion for years, and his move to use the Act for deportations hinges on this characterisation. To invoke the law, the US has to be at war or under invasion by a foreign country.
But is the US under invasion? And who decides whether that is happening?
Immigration and legal experts say the US is not under invasion from a Venezuelan gang or any other group or country, and that undocumented immigration alone does not constitute an invasion.
A federal judge has temporarily blocked the Trump administration from using the Alien Enemies Act to deport people. The administration says the judge’s ruling is unlawful and usurps the president’s powers.
In the past, courts have declined to rule on whether immigration can be classified as an invasion, saying it is a matter of national security and foreign policy. But legal experts say there are exceptions that may lead judges to rule on this question, including if the president acted in bad faith or made an obvious mistake.
Existing laws allow for gang members to be deported from the US. But those laws require going through an immigration court. The Alien Enemies Act bypasses due process, such as appearing before an immigration judge.
What is the Trump administration’s basis for using the Alien Enemies Act?
The Act lets the president detain and deport people from a “hostile nation or government” without a hearing when the US is either at war with that country or the country has “perpetrated, attempted, or threatened” an invasion or raid legally called a “predatory incursion” against the US.
Trump’s proclamation made two seemingly contradictory arguments to prove Tren de Aragua’s presence in the US represents a foreign invasion.
First, the proclamation says Tren de Aragua is acting as a quasi-government in Venezuelan territories where the Venezuelan government has “ceded ever-greater control”.
The proclamation also argues that Tren de Aragua “is closely aligned with, and indeed has infiltrated, the Maduro regime”.
White House press secretary Karoline Leavitt said in a March 19 briefing that Tren de Aragua has been sent to the US by the Venezuelan government.
“A predatory incursion is absolutely what has happened with Tren de Aragua, they have been sent here by the hostile Maduro regime in Venezuela,” Leavitt said.
Noah Feldman, Harvard University law professor, wrote in a March 17 column, “In other words, the Trump administration is claiming both that the gang is the government of Venezuela and that the gang is independent of the government of Venezuela.”
Trump has said repeatedly, without evidence, that countries including Venezuela are emptying their prisons and sending people to the US.
Tren de Aragua grew and operated out of a prison run by Venezuelan officials with the government’s knowledge, Ronna Risquez, a Venezuelan investigative journalist who published a book about Tren de Aragua, said in a March 18 interview. She added that she has not seen evidence that the gang responds to or is run by the Venezuelan government or that it has sent Tren de Aragua members to the US.
Does undocumented immigration alone constitute an invasion?
Five legal experts whom PolitiFact interviewed, and several others who have written on the topic, say no.
“It is simply wrong as a matter of law, fact, and common decency to treat migrants as an ‘invasion’,” Mary Ellen O’Connell, University of Notre Dame law professor, said. “The United States is not in a war with Venezuela; Venezuela is not threatening or undertaking to invade the US.”
It is one thing to rhetorically describe immigration as an invasion, “but when you get to the legal realm, words have meaning”, Katherine Yon Ebright, an expert on constitutional war powers at the Brennan Centre for Justice, said. “In the context of the Alien Enemies Act, invasion and predatory incursion referred to civil war or armed attacks by organised militaries or paramilitaries.”
Michael Gerhardt, constitutional law professor at the University of North Carolina Chapel Hill, said: “If our government has evidence of a coordinated invasion into this country that was engineered by a foreign nation, it must have proof. Otherwise, it is fiction.”
What constitutes an invasion?
The Constitution uses the term “invasion” four times, related to national security, the federal government’s war powers and the narrow exception under which states can engage in war. But the Constitution does not define “invasion”. And the US Supreme Court has not ruled on its meaning either.
Historical context and records put the intended meaning of “invasion” in context.
The framers “consistently characterised it as a military incursion into US territory by a foreign state”, Matthew Lindsay, University of Baltimore law professor, said. He pointed to former President James Madison’s writings in 1800: “Invasion is an operation of war. To protect against invasion is an exercise of the power of war.”
Legal experts pointed to the three times the Alien Enemies Act has been invoked – the War of 1812, World War I and World War II – to illustrate the differences between then and now. All previous invocations were during wartime.
Trump has not asked Congress to declare war, as former President Franklin Delano Roosevelt did after Japanese forces attacked Pearl Harbor, the last time the Act was invoked.
“In fact, he hasn’t even identified an armed attack that would trigger the law of war,” Yon Ebright said.
Yon Ebright pointed out that Trump has also said the US is no longer under invasion. Trump posted on March 1 on Truth Social, “The Invasion of our Country is OVER.”
What have courts said about undocumented immigration and invasion?
In the 1990s, several states sued the federal government, saying it had failed to protect them from an undocumented immigration invasion, forcing them to incur a fiscal burden. Four district courts of appeal dismissed the cases; judges said they were unable to rule because the cases dealt with political questions.
Federal courts generally decline to rule on political questions – topics that the Constitution makes the “sole responsibility of” the executive or legislative branches, Cornell University’s Legal Information Institute said.
Though the courts did not rule in the 1990s on whether undocumented immigration constituted an invasion, one federal judge said in 1996 that an invasion had to be perpetrated by another state or foreign country and that had “clearly” not happened.
In February 2024, after Texas passed a law claiming in part that it had been invaded by immigrants, a federal judge ruled that “surges in immigration do not constitute an ‘invasion’ within the meaning of the Constitution”. The case is pending after the state appealed against the ruling.
