The president’s legal position that he can proceed with no input from Congress or judicial review is on shaky ground.
The president’s legal position that he can proceed with no input from Congress or judicial review is on shaky ground.
I n two earlier posts (here and here), I’ve dealt with the facts of the controversy that has exploded over the Trump administration’s effort to deport hundreds of Venezuelan aliens who, prior to being flown on Saturday night from Texas to El Salvador (with a stop in Honduras), were detained in the United States on criminal and immigration charges.
The controversy is intensifying, with U.S. Chief Justice John Roberts having now publicly reprimanded the president after a social media post in which Trump called for the impeachment of Chief Judge James Boasberg of the U.S. District Court for Washington, D.C. — the judge assigned to a lawsuit brought on behalf of the Venezuelan detainees. (See our David Zimmermann’s report.) On Saturday evening, Boasberg, whom Trump labeled a “Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama,” issued the order directing a two-week pause in the deportations. He further admonished that any deportation flights that had already taken off were to be turned around, with the detainees returned to the United States. The flights were not turned around, and the judge has demanded an explanation, which the administration has so far declined to provide on “national security” grounds.
Boasberg directed the Trump Justice Department to provide that explanation by noon on Tuesday. The New York Times reports that the administration continues to refuse to provide more information, demands that Boasberg extinguish his order pausing the deportations, and has asked the D.C. Circuit to intervene and suspend the case in the lower court. (As I noted in Tuesday’s post, the Justice Department had already asked the circuit to remove Chief Judge Boasberg from the case.)
In this post, I want to address the legal issues attendant to President Trump’s deportation gambit.
The president claims that his power to deport these Venezuelans without court process (with thousands more deportations to come) is rooted in the Alien Enemies Act, based on his unilateral findings that (a) the Venezuelans are members of the ruthless Tren de Aragua (TdA) international criminal enterprise, (b) TdA is a foreign terrorist organization affiliated with Nicolás Maduro’s Marxist regime in Venezuela, and (c) TdA has carried out (or is carrying out) an “invasion” of or “predatory incursion” into the United States.
Much as I would like to see all members of TdA rapidly expelled (in addition to all criminal aliens), the president’s legal position that he can do this with no input from Congress and no judicial review when the country is not at war is untenable.
The Alien Enemy Act of 1798
Enacted in the early republic as part of what became known as the Alien and Sedition Acts, the Alien Enemies Act of 1798 (codified in Section 21 of Title 50, U.S. Code) authorizes the president to remove aliens in wartime or its equivalent. Specifically, this authority is triggered
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.
Generally, then, even a de facto war is insufficient for presidential invocation of the AEA. There must be a declared war. This is significant because the Constitution authorizes only Congress to declare war and thereby establish such critical legal facts as who the enemy is. This is why in its 228-year history, the AEA has been invoked only three times, all in declared wars: the War of 1812 and the two world wars of the first half of the 20th century. The United States has been in numerous conflicts in the ensuing 80 years, including a turn-of-the-century war against terrorists who attacked our territory and had significant support cells inside our country; yet there has been no declared war, and no president has invoked the AEA.
Unless there is a formally declared war, the AEA’s removal authority is triggered only if there is an “invasion or predatory incursion” by a “foreign nation or government.” Obviously, the Congress that enacted the AEA was concerned that an invasion or incursion on the scale of war could occur before Congress had time to convene and declare war. In such a dire emergency, the president must be able to act. But there has been no sudden invasion of the U.S.; there has been a yearslong stream of illegal immigration. And Congress has been in session regularly — and, in fact, has been in session since Trump was inaugurated on January 20 — yet there has been no presidential push for legislation to strengthen detention and deportation authority.
Tren de Aragua
Mass migration by Venezuelans in particular went on for four years, incontestably abetted by the Biden administration, which even flew tens of thousands of Venezuelan “migrants” into our country. This was a national security disaster (as a number of us pointed out at the time). Yet, President Trump now wants to portray the influx of Venezuelans, and TdA’s part in it, as if it were a sudden warlike foreign invasion, which Congress has had no opportunity to address and, hence, he must act against.
In his Saturday proclamation, the president declared:
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.
President Trump’s assessment that the influx of Venezuelans has been malevolent is closer to the truth than the Biden administration’s claims that it’s been benign. Even so, the Constitution does not give the president the authority to declare war. Derivatively, it does not endow the president with authority to treat as a warlike invasion a stream of illegal immigration that began years ago with the knowing indulgence of the prior administration. Whatever the nexus between TdA and the Maduro regime may be, Congress has not declared war against Venezuela or authorized the use of force against his operatives — whether armed forces or clandestine agents.
Obviously, TdA operatives should be apprehended, prosecuted, sentenced, imprisoned, and deported. And if TdA’s activities rise to the level of an invading enemy force conducting acts of war against the United States, the president should be working with Congress to enact a declaration of war against Venezuela, or at least an authorization of military force that designates Venezuelan nationals in the United States as alien enemies who may be detained and deported without court proceedings.
Still, in the absence of a sudden invasion by a hostile foreign power, as to which the president must take wartime defensive measures before Congress has an opportunity to declare war, the president has no legitimate basis to invoke the AEA.
Here, facts and history are decidedly against the president.
TdA is not a foreign nation or a government; it is an extraordinarily dangerous criminal gang based in Venezuela. The president’s findings in the executive order that the gang engages in violence and terror on a scale greater than that of mere criminal gangs, that it disrupts the international order, and that it must thus be designated as a foreign terrorist organization do not change this fact.
Moreover, our nation is not at war with Venezuela and has been treating TdA as a crime problem similar to Mara Salvatrucha (the Mexican gang known as “MS-13”), not an enemy combatant force similar to al-Qaeda. Congress is in session — and even if it weren’t, it could convene in a matter of hours to legislate about the Venezuelan and TdA threats. And the courts are open and functioning, so there can be no credible claim that the regular processes for deporting removable aliens are unavailable.
The Civil War
When President Lincoln ordered up military forces, directed combat operations against Confederate forces, and cut off court access to Confederate sympathizers by unilaterally suspending the writ of habeas corpus in 1861, the nation was undoubtedly in a state of war. There was no formal declaration of war, but such a declaration was unnecessary because the conflict involved an internal rebellion, not a foreign power. Unlike today, Congress in the mid-19th century was frequently out of session for about half the year, and convening it for emergencies took weeks at a time because of the lack of modern communications and travel technology. Hence, the nation could have been destroyed if the president were unable to put down an insurrection without congressional authorization.
Even with all of that, however, when the Civil War Congress reconvened, it took pains to authorize Lincoln’s emergency actions.
The habeas corpus controversy is instructive. Lincoln unilaterally suspended the writ in 1861. Supreme Court Chief Justice Roger Taney (acting as a circuit justice) ruled this act unconstitutional, reasoning that because the suspension clause is in Article I (section 9), only Congress could invoke it. Yet, because there was a state of war, the only question was which branch of government was empowered to suspend the writ; there was no doubt that the prerequisite for suspending habeas corpus — “when Cases of Rebellion or Invasion the public Safety may require it” — had been satisfied. Consequently, the Supreme Court never ruled on Lincoln’s unilateral suspension of the writ (nor on his ignoring of Taney’s issuance of the writ) because Congress retroactively authorized Lincoln’s action when it reconvened (in the Habeas Corpus Suspension Act of 1863).
Nevertheless, after the Civil War ended, the Supreme Court held in Ex parte Milligan that the executive branch could not employ military commissions, even during wartime, in a state (Indiana) where there was no combat and the courts were open and functioning. The inexorable logic of Milligan is that when Congress has enacted laws to deal with the alleged misconduct at issue (as it had in Milligan’s case), and when the courts are available to adjudicate cases, the executive may not unilaterally suspend legal processes and function as accuser, judge, jury, and executioner. And certainly when Congress is in session and the courts are open (i.e., when no invasion has rendered the legislature and judiciary unable to function), only Congress is empowered to cut off access to the courts. The president has no such power.
D.C. Circuit Precedent
In light of this history, Citizens Protective League v. Clark, the 1946 D.C. Circuit precedent the Trump administration is arguing in appealing Judge Boasberg’s order, actually undercuts its position. That case involved German nationals whom President Truman ordered removed from the United States under the AEA. In concluding that the AEA was constitutional, the circuit observed that the republic’s founders, including Thomas Jefferson and James Madison, had urged the AEA’s obvious constitutionality as a logical extension of Congress’s power to declare war. Congress, not the president, was authorized by the Constitution to designate nationals of the hostile power as enemies who were subject to detention and expulsion without court intervention. That, again, is why the AEA has only ever been invoked in three declared wars, and not in the last 80 years.
The Congress’s declaration of war in World War II was found by the circuit to be the essential fact that rendered intrusion by the judiciary inappropriate:
As a practical matter, it is inconceivable that before an alien enemy could be removed from the territory of this country in time of war, the President should be compelled to spread upon the public record in a judicial proceeding the method by which the Government may detect enemy activity within our borders and the sources of the information upon which it apprehends individual enemies. No constitutional principle is violated by the lodgment in the President of the power to remove alien enemies without resort or recourse to the courts. [Emphasis added.]
Consequently, the only real issue in the case was whether the state of war was still in effect in 1946 even though Germany had been defeated the preceding year. The circuit found it technically was because no armistice with Germany had been struck, and because it was for Congress, not the judiciary, to pronounce the conclusion of the war that Congress had declared.
That is to say: The propriety of President Truman’s invocation of the AEA owed entirely to the intervention of Congress in declaring war against the specific enemy as to whom the president took action. The case in no way supports unilateral action by the president to declare the existence of a warlike conflict, seize and detain claimed operatives as if they were wartime enemy combatants, and dispose of their legal complaints — even to the point of deporting them — without court intervention.
The Supreme Court’s Post-9/11 Rulings
Two final points. There was precedent during and immediately after World War II for the propositions that the following categories of detainees had no right to seek habeas corpus in the civilian courts: (1) enemy combatants (a group of German saboteurs including at least one American citizen) captured inside the United States during wartime — most of whom were summarily executed after military commissions (Ex Parte Quirin (1942)); and (2) aliens (Germans) who had never been in the United States, who were captured outside the United States (in China) in the aftermath of the war, and who were detained in ally-occupied Germany (Johnson v. Eisentrager (1950)).
These rulings hinged on the facts that Congress had declared war and that, in Eisentrager, the aliens in question had no presence or immigration status in, or indeed any connection to, our country. Ergo, even if these cases were still as viable as they were the day the Court decided them, they would be unavailing for the Trump administration in its effort to deport Venezuelan detainees without court intervention. There is no war, the Venezuelan detainees were living in the United States when apprehended (many at the indulgence of the Biden administration), and Congress has not authorized the administration’s summary deportations.
These precedents, however, are not as viable as they once were; they were significantly undercut by the Supreme Court during the wars in Afghanistan and Iraq that followed the 9/11 attacks. Those cases provided for judicial intervention even though Congress had authorized military operations and even though the alien enemy combatants in the disputed cases were both captured and detained outside the United States (i.e., outside the jurisdiction of the U.S. courts).
In Hamdi v. Rumsfeld (2004), the Court held that Americans detained as enemy combatants, even outside the United States, had a right to challenge in court their detention by the executive branch. In Rasul v. Bush (2004), the Court extended this right to judicial review to alien enemy combatants captured and detained outside the U.S., reasoning that Congress’s habeas corpus statute required it. And finally, in Boumediene v. Bush (2008), even after Congress had statutorily supported the president’s authority to detain alien enemy combatants, the Court held that they had a constitutional right to challenge their detention.
For what it’s worth, I believe these cases were wrongly decided. I’d wager the outcomes of all three, and at the very least Rasul and Boumediene, would have been different if the current Supreme Court had ruled on them. There is no doubt, however, that these precedents are binding law and will remain binding law unless and until the Court overrules them. That means lower federal courts, including Judge Boasberg’s court, must follow them.
Importantly, even if a majority of the current Court would have decided the post-9/11 cases differently, the Court is highly unlikely to overrule these precedents absent a case in which they are unavoidably implicated. That is, there would have to be a case involving a real war against a foreign power, in which Congress has authorized the use of military force and the president is detaining alien enemy combatants — including inside the United States — and taking dispositive actions against them (such as deportation or trials by military tribunal) despite the fact that the civilian courts are open and functioning.
It bears emphasizing: the decisions of the post-9/11 Court were driven by concerns that the president was acting unilaterally under circumstances in which (a) consultation and joint action with Congress was readily available, and (b) the post-9/11 conflict presented questions (such as whether those detained were actually operatives of our terrorist enemies) that were largely absent in prior conflicts against conventional nation-state enemies and their armed forces.
Conclusion
In light of all this, in the absence of a war that Congress has authorized or a sudden invasion or incursion by a foreign power, the lower federal courts are not going to grant President Trump license under the AEA to unilaterally deport aliens, in lieu of the elaborate statutory processes Congress has enacted for that purpose.
The surge of illegal immigration turbocharged under Biden — even acknowledging its inclusion of such dangerous gangs as TdA and, undoubtedly, terrorist operatives — has gone on for years. Still, Congress has not declared war or authorized extraordinary detention and deportation measures. Since President Trump’s second term began nearly two months ago, Republicans have controlled both houses of Congress, yet the president has not asked Congress to declare war or recognize an invasion or incursion that would call for measures analogous to the wartime detention of enemy forces and expulsion of enemy nationals. The courts are not going to endorse President Trump’s unilateral deportations under these circumstances.
Crucially: This doesn’t mean the government may not or should not deport illegal aliens, especially dangerous gang members. It means deportations must be consistent with existing legal processes, not an unprecedented and historically unsupportable application of the AEA.
Finally, in just eight weeks in office, President Trump has made stunning pronouncements that he is above the law as long as he is “sav[ing] his Country”; he has turned the Justice Department into a political-messaging shop and unleashed it to pursue his political enemies while crafting a revisionist history of the Capitol riot, the soft coup attempt to retain power over which he was impeached, and the quite colorable felonious allegations lodged against him in the Mar-a-Lago case; and now he has begun issuing executive orders that are functionally bills of attainder against law firms that represented and collaborated with his partisan adversaries.
On that record, he can’t reasonably expect the courts to conclude that what this country needs right now is more unilateral executive power, less congressional input, and no judicial review.