The Courts Overstep in the Messy Clash with Trump over Tren de Aragua

L ast week, the federal appeals court in Washington, D.C., agreed to halt the Trump administration’s deportation of members of the Venezuelan Tren de Aragua gang (TdA). While only a temporary order, the 2–1 decision intrudes into the province of the elected branches of government over war and national security. A federal court has never before overruled the decision of a president or Congress that the United States has suffered an attack or invasion. The Department of Justice has petitioned the Supreme Court for review, which the Court should grant. The Court should prevent trial judges from interfering with the elected branches’ authority over war and national security.

To be sure, the Trump administration has confronted the federal courts by making an unprecedented use of the 1798 Alien Enemies Act. The act authorizes the president to detain and expel aliens of “a hostile nation or government” with which the United States is in a “declared war” or by which it has suffered an “invasion or predatory incursion.” The United States had used the act only during the declared War of 1812 and World Wars I and II.

But on March 15, President Trump invoked the law to send members of TdA to a prison in El Salvador. He proclaimed that the gang, which has been designated a foreign terrorist organization, was conducting an invasion or predatory incursion through “irregular warfare” such as “drug trafficking” and “mass illegal migration” into the United States. Notice that the act requires that the enemy be a “hostile nation or government.” Trump claimed that this standard was met as well because TdA is “closely aligned with, and indeed has infiltrated,” the Venezuelan government.

The Trump White House makes the truly extraordinary claim that a gang has risen to the level of a foreign government that is conducting an invasion or predatory incursion into the United States. We have argued elsewhere that this would be a difficult showing to make and would depend on the facts of the Venezuelan government’s control over TdA and on whether international criminal activities can constitute a military threat to the national security.

But that is an entirely different question from whether the federal courts are the right institution to make that judgment. Judicial review does not extend to every constitutional question. The Supreme Court itself has long recognized that there are certain “political questions,” which the Constitution itself has committed to the final decision of the president or Congress, or which have no legal standards that the courts can apply. The judiciary cannot review impeachments, for example, the complete power over which the Constitution grants to the other branches. The Supreme Court has also found that the Constitution provides no legal standards for the judiciary to apply to partisan gerrymandering. Recognizing these limits to the judicial role is no dereliction of duty. In Marbury v. Madison, the very case that first declared the power of judicial review, Chief Justice John Marshall admitted that “the President is invested with certain important political powers, in the exercise of which he is to use his own discretion.” For his decisions, “he is accountable only to his country in his political character, and to his own conscience.” His choices cannot be questioned in court because “the subjects are political.” These issues “respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.”

One area that has long sat at the top of this list of political questions is war. The Constitution vests the president with the role of commander in chief of the armed forces, while it gives to Congress the power to declare war and to raise and fund the armed forces. The courts have no power to direct the president in the exercise of his wartime authority.

Courts have studiously avoided second-guessing the decisions of the elected branches of government. Federal judges refused to rule on the legality of not just the Iraq and Afghanistan wars but every war in American history — even in the Guantanamo Bay cases, the courts deferred to the decision of President George W. Bush and Congress that the 9/11 attacks had started a war. In the most well-known example, the Prize Cases of 1862, the Supreme Court refused to judge whether President Abraham Lincoln had properly invoked the nation’s war power in response to secession. “Whether the President in fulfilling his duties as Commander in Chief” was justified in treating the Southern states as belligerents and instituting a blockade, the Court declared, was “to be decided by him.” The Court could not question the merits of his decision or the level of armed force to be used and must leave evaluation to “the political department of the Government to which this power was entrusted.”

In the War of 1812, the Supreme Court also recognized that courts could not review decisions of the other branches on war. In Martin v. Mott, a plaintiff argued that he did not have to appear for military service under the 1795 Militia Act, which allowed the president to call out the militia to “repel invasions.” Writing for the Court, Justice Joseph Story concluded that “the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.” While stressing that delay and confusion could arise in the ranks if questions arose over the president’s authority, the Court also observed that “the evidence upon which the President might decide that there is imminent danger of invasion, might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment.” All of these are reasons, the Court found, for the president to hold an unreviewable authority to decide whether an invasion had occurred. If the decision whether an “invasion” has occurred is committed solely to the president under the 1795 Militia Act, it should be so under the 1798 Alien Enemies Act.

But in J.G.G. v. Trump, the D.C. Circuit ignored the judiciary’s traditional deference on questions of war. Judge Karen Henderson’s opinion displayed little modesty in rejecting the claim that TdA’s conduct qualified as an invasion. Based on her review of the history of the 1798 act, she concluded that an invasion “required far more than an unwanted entry; to constitute an invasion, there had to be hostilities.” She observes that “in every instance,” in the Constitution, in laws and debates of the time, invasion “is used in a military sense.” Same goes, she concludes, for predatory incursions.

On this ground alone, the Supreme Court should grant emergency review of the case. Federal judges do not have the capability, understanding, or access to information to make sensitive decisions on whether a foreign actor represents a national security threat, nor can they judge the harms that could arise from action or inaction. American courts hear legal disputes governed by formal legal rules that generally seek to determine whether past conduct by a defendant has harmed the legal rights of a plaintiff. Courts are not designed to make policy decisions involving probabilities and risks, which are characteristic of war and national security.

At the same time, the D.C. Circuit’s rush to decide the political question of war is all the more troubling because the Trump administration concedes that whether or not the Alien Enemies Act applies, the Venezuelans will receive some form of due process in court. During the litigation, if not during the deportation operation, the Justice Department argued that the aliens could seek a writ of habeas corpus to contest their transfer abroad. If regular immigration laws were used, the illegal aliens would also have a right to immigration court review and ultimate appeal to the federal courts too. Putting aside the technical differences between habeas and immigration court, the government has conceded that every alien has the right to challenge the grounds of his deportation, including whether there has been an error in his identification or, in this case, his classification as a TdA member. Given the administration’s position that individualized judicial review is available, concerns about due process and the risk of erroneous removals should be assuaged.

Moreover, the administration’s position on the availability of habeas disarms one of Judge Henderson’s main arguments for justiciability. She relies on the 1813 circuit court decision in United States v. Thomas Williams, by Chief Justice John Marshall, to support her claim that courts may directly review and overturn presidential findings about the existence of an “invasion” or “incursion.” But Marshall did not do that; he merely held that the regulations the president had issued respecting enemy aliens did not authorize the prisoner’s confinement “in this case.”

While we do not think that the administration should be compelled to disclose to the courts the full evidentiary basis for its finding that a “foreign government or nation” has undertaken or sponsored an “invasion” or “predatory incursion,” recent press accounts suggest that the administration’s conclusions have support. Analysts and investigators assert that the Nicolás Maduro regime in Venezuela has purposely sent TdA to the United States to destabilize our political system, that Venezuela has trained 300 TdA members for that work, and that it has assumed operational control over them.

Such judgments lie in the area of prediction and probability characteristic of national security and foreign policy affairs, not the legal standards of courtroom trials. The courts have no means to measure and evaluate whether foreign enemies are conducting covert and hybrid attacks on the United States. The Supreme Court should make clear that courts should defer to presidential findings on national security and that the administration is entitled to protect the intelligence on which those findings are based.

The administration is justified on another ground for seeking to maintain the confidentiality of its deliberations. It told the courts that disclosure of its diplomatic dealings with Venezuela and El Salvador risked “scuttling delicate international negotiations.”

To grasp this fully, one has to understand that the administration has several irons in the fire — of which deportations is only one — in its dealings with the Maduro regime. Trump has ordered the U.S. oil producer Chevron to wind down its operations in Venezuela, though he has given it different deadlines to comply. The administration issued those orders after accusing Maduro of not making progress on electoral reforms or migrant returns. Sending TdA members to detention in El Salvador may have been an essential move in a high-stakes diplomatic game with Venezuela.

From the administration’s perspective, the lower courts are meddling in its efforts to extract important concessions from Venezuela. Venezuela is in a position to damage U.S. interests in the Caribbean region. (China has long been a silent ally of Maduro: its support for him and, before him, for Hugo Chavez has been indispensable in keeping the Venezuelan dictatorship in power.) The courts should not get entangled in these negotiations, which are exclusively for the executive branch and directly concern hemispheric security.

Lawyers for the Venezuelan aliens, of course, raise the specter of despotism. They assert that the Trump administration could abuse the Alien Enemies Act to deport anyone on the president’s whim. Justice Story answered that very same fear in Martin v. Mott. Courts should expect presidents to act in the national interest, Story wrote, and “the frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.” The Founders expect Congress, not the courts, to check any presidential abuse of war powers. Courts would undermine the virtues of an energetic executive if they were to replace elections and congressional oversight with an unwarranted faith in their own powers.

John Yoo is a distinguished visiting professor at the School of Civic Leadership and a senior research fellow at the Civitas Institute at the University of Texas at Austin, the Heller Professor of Law at the University of California, Berkeley, and a nonresident senior fellow at the American Enterprise Institute. Robert J. Delahunty is a fellow at the Claremont Institute’s Center for the American Way of Life.