The Trump administration has unveiled a novel legal theory to defend its most controversial immigration crackdown, arguing in a new court filing that the indictment of Venezuelan leader Nicolás Maduro proves his regime and the Tren de Aragua (TdA) gang have merged into a “hybrid criminal state.”
This filing, submitted to the U.S. Court of Appeals for the Fifth Circuit, is a strategic pivot designed to satisfy the strict requirements of the Alien Enemies Act of 1798. By characterizing the TdA gang not just as criminals, but as foot soldiers of a hostile foreign government, the Department of Justice is attempting to legally reclassify urban gang violence as a military invasion.
The 1798 Loophole
The Alien Enemies Act is a potent but archaic statute that allows the President to detain and deport non-citizens without due process during a “declared war” or an “invasion or predatory incursion” by a foreign nation. It has historically been used only during major conflicts, most infamously to justify Japanese internment during World War II.
Critics and judges – including U.S. District Judge James Boasberg – have been skeptical of the administration’s use of the law in peacetime, noting that the U.S. is not at war with Venezuela. The administration’s new filing attempts to bridge that gap by arguing that the criminal indictment of Maduro changes the geopolitical reality.
“These new developments underscore the Maduro Regime’s control over TdA and TdA’s violent invasion or predatory incursion on American soil,” the DOJ filing states.
The “Hybrid State” Argument
The core of the administration’s argument is that Tren de Aragua is no longer a non-state actor. Citing the Southern District of New York’s indictment of Maduro on narco-terrorism charges, government lawyers assert that the gang operates as an arm of the Venezuelan government.
If the court accepts that TdA members are effectively agents of a hostile foreign power, then their presence in the U.S. could legally be construed as the “predatory incursion” required by the 1798 statute. This would theoretically grant the President wartime powers to deport them summarily, bypassing immigration courts entirely.
The Opposition: “Criminals, Not Soldiers”
Civil rights groups are fiercely contesting this interpretation. The ACLU argues that conflating criminal activity with military action sets a dangerous precedent that could allow the executive branch to bypass the judicial system whenever a foreign criminal organization is involved.
“Maduro’s alleged actions were not military, but rather criminal offenses properly handled through the justice system,” ACLU lawyers argued.
They further contend that the administration’s logic is contradictory: the White House proclamation cites the “Maduro regime” as the director of the invasion, yet simultaneously treats Venezuela as a distinct entity to avoid declaring war on the nation itself.
The CECOT Connection
The legal battle has immediate consequences for hundreds of migrants. The administration has sought to deport Venezuelans under this act to CECOT, El Salvador’s “mega-prison” for terrorists, arguing that detention there ensures U.S. national security.
Judge Boasberg previously blocked these removals, ruling that the migrants were denied due process. With this new filing, the administration is signaling that it intends to fight that ruling all the way to the Supreme Court, betting that the “hybrid criminal state” theory will convince conservative justices that the President’s national security powers supersede the procedural rights of the accused.
As the case moves forward, the definition of “war” in the 21st century is on trial. If the DOJ succeeds, the line between a mafia don and a military general—and between a crime wave and an invasion—may be erased from federal law.