The president’s AEA invocation is surely headed to the Supreme Court yet again.
The president’s AEA invocation is surely headed to the Supreme Court yet again.
U ltimately, I believe President Trump is going to lose in court on his invocation of the 1798 Alien Enemies Act (AEA) as a predicate for summary deportations of Venezuelans he alleges are members of the Tren de Aragua (TdA) international criminal enterprise. But I think that will happen down the road, in the Supreme Court. For now, I am going to go out on a limb and predict a win for the administration in the ongoing round of AEA litigation in the U.S. Court of Appeals for the Fifth Circuit.
Last Monday, a three-judge circuit panel heard oral argument in the case, which is now called W.M.M. v. Trump. (The case has gone through several iterations of abbreviated plaintiffs’ names, including, as I’ve previously detailed, a lead plaintiff referred to as A.A.R.P., after which the caption was changed at the behest of the well-known group that advocates for older Americans.) Compared to several circuits numerically dominated by appointees of Democratic presidents, the Fifth Circuit is more Republican and Trump-friendly. In this instance, the administration drew a very favorable three-judge panel: Bush-43 appointee Leslie H. Southwick, Trump appointee Andrew Oldham, and Biden appointee Irma Carrillo Ramirez.
Judge Southwick seemed sympathetic to the president’s position, though open-minded regarding the ACLU’s arguments on behalf of the aliens. Judge Ramirez, who asked no questions until the hour-long session was winding to its conclusion, is very likely to side with the aliens. What was striking, though, was the performance of Judge Oldham, a super sharp former clerk to Justice Samuel Alito and former general counsel to Texas Governor Greg Abbott. Not only does Oldham appear persuaded that the president’s AEA invocation is not justiciable (i.e., is not reviewable by the courts); he went further than the Trump Justice Department in suggesting that the administration’s conclusion that an alien is a member of TdA is also beyond judicial review.
Justiciability
This case presents issues very similar to the one involving Trump’s federalization of the California National Guard in response to rioting in California (which Rich Lowry and I discussed on a recent episode of our podcast). There, the president invoked Section 12406 (of Title 10 of the U.S. Code). That statute, like the AEA, (a) has its roots in early American history, and (b) sets forth statutory terms that, if satisfied, trigger extraordinary presidential powers. With the AEA (Section 21 of Title 50), the terms are the existence of a declared war, an invasion, or a predatory incursion; with Section 12406, the terms are an invasion or rebellion (or the “danger of” either), or a situation in which the president is unable to execute the laws with “regular forces.”
Such cases present two issues that are not easily extricable: (1) whether, objectively speaking, the statutory terms are fulfilled, and (2) who gets to decide? The latter question implicates justiciability: Is the subject matter of the lawsuit committed by the Constitution or a statute to the discretion of a political branch of the government, such that the judiciary should not intervene?
The answer to the justiciability question is not self-evident because the pertinent statutes are written as if what matters is objective fact. The AEA, for example, speaks of whether there is “any incursion or predatory incursion . . . by any foreign nation or government”; the statutory condition is not prefaced by something along the lines of “when, in the judgment of the president, any incursion or predatory incursion by a foreign nation or government has occurred . . .”
If Congress has not explicitly delegated to the president the decision about whether a statutory term has been fulfilled, there is usually a good argument for having the court decide. After all, statutory interpretation is what courts do — it is the core of the Constitution’s judicial power. Plus, by answering such questions, the court is not (as MAGA partisans maintain) usurping the president’s power; it is giving effect to Congress’s statute — which, in the AEA case, is the only source of the president’s power. (The Trump administration imperiously claims that if a statute authorizes the president to take an action, even if the president would have no such authority in the absence of the statute, only the president may legitimately decide whether Congress’s conditions have been met. I do not believe that is tenable.)
On the other hand, context matters. At issue here are alien threats to national security, which are by nature political rather than judicial — i.e., they involve judgments about foreign affairs, military force, and classified intelligence that are not within the judicial ken. Even conceding that it is the courts’ job to interpret statutes, should an unelected court’s judgment about whether, say, a predatory incursion by a foreign power has occurred — a judgment that determines how the government should respond, potentially militarily and diplomatically — supersede the judgment of the president elected to protect national security and conduct foreign affairs?
Confusing Jurisprudence
As if that were not fraught enough, we also have to factor in jurisprudence. Regardless of what a lower court judge may think about the objective question presented by a statute like the AEA (e.g., has there been an invasion by a foreign power?), or about the justiciability issue (should the court intervene?), the judge is duty bound to follow the precedents of superior courts, particularly the Supreme Court. Here, those decisions raise more questions than they clarify.
The controlling case on the AEA (as I’ve previously related) is Ludecke v. Watkins (1948), in which the Court upheld President Harry Truman’s AEA invocation. The question was whether, in 1946, the nation was still in a declared war in Europe even though the fighting had stopped and Germany had been defeated the previous year.
Writing for a narrow majority, Justice Felix Frankfurter observed that some statutes “preclude judicial review” and that one such statute is the AEA “barring questions of interpretation and constitutionality.” I highlight that passage both because it was central to the oral argument before the Fifth Circuit and because it is confusingly contradictory: Preclude judicial review means not justiciable . . . but how non-justiciable can a statute be if the Supreme Court caveats that it may be interpreted by judges?
Understandably, the Trump Justice Department stresses that the deference to the president implied the Supreme Court’s presumption that judicial review is precluded. The ACLU counters that Ludecke itself not only (a) went on to say that judges may engage in statutory interpretation but then (b) actually proceeded to interpret the AEA condition at issue — the question whether a declared war was still in effect. From this premise, the ACLU contends that if courts can properly interpret whether the declared war trigger for the AEA has been met, then surely they may interpret whether the statute’s other triggers — invasion or predatory incursion by a foreign power — have been met.
Trying to avoid the appearance of contradicting Justice Frankfurter, the Justice Department essentially replies: Well, sure, you can interpret the statute, but that just means you can hold that it is triggered by an invasion or predatory incursion; it is still up to the president to decide whether an invasion or predatory incursion has happened — and note that, in Ludecke, the Court did not second-guess the president’s determination that a declared war remained in effect.
The ACLU pushes back on both these points, contending: (a) the statutory interpretation that the Ludecke Court authorized would be a pointless exercise if it excluded the question whether the relevant statutory term applies to the situation at hand; and (b) the Court deferred in Ludecke to Congress’s declaration of war, not to a unilateral presidential decision.
To my mind, the other relevant passages of Ludecke support the ACLU’s interpretation. In explaining that alleged alien enemies may “challenge the construction and validity of the statute” as well as the existence of a “declared war,” the Court then added (in footnote 17):
The additional question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may also be reviewed by the courts. . . . This question is not raised in this case. [Emphasis added.]
Let’s summarize, then. Not all AEA terms were at issue in Ludecke — there was no claim of invasion or predatory incursion, the terms in dispute in the challenges to Trump’s AEA proclamation. But with respect to statutory terms that Ludecke did discuss — namely, whether there was a declared war, whether the person restrained was an alien of the enemy state, and whether the restrained person was 14 or older — the Court ruled that those matters were justiciable. If those AEA terms are justiciable, it is hard to see how other statutory terms — namely, invasion and predatory incursion — would not be.
War Powers
But what about deference? Well, to repeat, on the question of whether our country was still in a declared war in 1946, the Court deferred not merely to the commander in chief’s determination but also to Congress. It was Congress that had declared war against Germany.
For the Court, how lawmakers had done so was significant. Although the Constitution vests in Congress the power to declare war, it was Congress’s historical practice to do so by a joint declaration signed by the president. That’s what happened in World War II: War was declared against Japan on December 8, 1941, the day after the Pearl Harbor attack; it was declared on Germany and Italy on December 11, 1941, immediately after they declared war against the United States. Consequently, the Ludecke Court could aptly say that the political branches jointly declared war. That made for a stronger case that the judiciary — the nonpolitical branch, endowed with no constitutional war power — should not substitute its judgment.
In the current AEA case, to the contrary, Congress has not weighed in on whether there has been an invasion or predatory incursion by an arm of the Venezuelan government (which the Trump administration alleges TdA is, even though U.S. intelligence agencies are not in agreement). The Trump DOJ insists that the president’s decree is sufficient; I believe the lack of congressional assent calls for more judicial scrutiny; our constitutional system is skeptical of claims of unilateral power.
May Courts Review Trump Allegations That an Alien Is a TdA Member?
Two other jurisprudential datapoints to consider: First, when it initially waded into Trump’s AEA proclamation back in April (in Trump v. J.G.G.), the Supreme Court unanimously held that the Venezuelan aliens had a right to challenge it by filing habeas corpus petitions (see my post). The Court cited Ludecke in observing:
Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to “judicial review” as to “questions of interpretation and constitutionality” of the Act as well as whether he or she “is in fact an alien enemy fourteen years of age or older.”
The Court immediately followed with a parenthetical strongly suggesting that Ludecke was authority for the aliens to challenge the president’s allegation that they are members of TdA:
(Under the Proclamation, the term “alien enemy” is defined to include “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.” . . .) [Emphasis added; citation omitted.]
I have italicized the reference to being a member of TdA to highlight what I referred to earlier as Judge Oldham’s extremely deferential position.
Notwithstanding its otherwise aggressive insistence that courts may not second-guess President Trump’s AEA invocation, the Justice Department has grudgingly acknowledged that this passage from the Supreme Court’s April order means that the Venezuelans may contest the president’s conclusion that they are members of TdA. By contrast, in the questions he posed at oral argument, Judge Oldham signaled his belief that this membership question is not justiciable.
Oldham noted that, in Ludecke, the Supreme Court reasoned that the president’s judgment about whether a particular alien enemy was dangerous and thus deportable under the AEA was not justiciable. Since TdA is an international gang rather than a uniformed national army or militia, Oldham anticipates that the only way to determine whether a Venezuelan alien is a TdA member would be to analyze his behavior — to explore whether the alien has committed the sort of egregious criminal acts from which we can infer TdA membership. That would be a de facto inquiry into dangerousness, which Oldham intimates is precluded by Ludecke.
I take the judge’s point, but I think this is apples and oranges.
Some salient background: While FDR and Truman invoked the AEA, they did not undertake to deport all German nationals; rather, the Germans were sorted into categories, and only the ones deemed dangerous were deported. Hence, when the Ludecke Court abjured judicial inquiries into dangerousness, it was referring to the president’s sorting of alien enemies into categories and deciding which ones should be deported. In World War II, there was no need to figure out who the alien enemies were beyond confirming that they were German because the enemy at issue was Germany, a nation against whom Congress had declared war. The AEA declaration was not against some militia or gang said to be controlled by Germany. As a matter of law, because Germany was the enemy, the president could have deported all German nationals. Ergo, to the extent that the FDR and Truman administrations made judgments to deport only some but not all Germans, the Ludecke Court said it would defer to such judgments.
By contrast, in the Trump AEA proclamation, the president has not named Venezuela as the enemy. Nor does the Justice Department claim we are in an armed conflict with Venezuela. Instead, Trump has named as the alien enemy a gang that the administration claims is an arm of the Maduro regime — dubiously so, I would add, based on loose and ambiguous connections (with the FBI and intelligence agencies differing on how to construe those connections). Consequently, it cannot be established — as it could in Ludecke — that an alien is an enemy simply by being a national of an enemy state. Therefore, the only way to challenge whether Trump’s AEA proclamation applies to an individual alien (as the Supreme Court says the alien is allowed to do) is to permit the alien to challenge whether he is actually a member of TdA. Unavoidably, that would put the onus on the Justice Department to present evidence of membership.
Anticipating Fifth Circuit Deference to Trump . . . and Supreme Court Review
Finally, hovering over the question of how much deference the president’s determinations are owed is the Supreme Court’s 1827 decision in Martin v. Mott, which former Bush-43 DOJ official Jack Goldsmith has insightfully analyzed at his Substack, Executive Functions. Mott, which arose out of the War of 1812, contains sweeping language about required deference to the president’s judgment that a foreign conflict required calling forth the state militias. Naturally, the Trump administration heavily relies on Mott. Still, the precise question in that case was whether a militia member himself could second-guess President James Madison, not whether the courts could. Yet later court decisions assume broad deference. If Mott is going to be qualified, it will be up to the Supreme Court to do that. Unless and until it does, Mott is a strong precedent for the Trump administration.
The Fifth Circuit could issue its ruling at any time, and I believe we are likely to get a 2–1 panel decision in the president’s favor. The senior member of the panel, Judge Southwick, seemed sympathetic to the administration, though less so than Judge Oldham. I expect Southwick would not go as far as Oldham on non-justiciability. The middle course I expect he’ll steer is: deference to the president’s invocation of the AEA, and even Trump’s debatable conclusion that TdA is an arm of the Venezuelan regime, but insistence that the aliens should be able to challenge whether there has been an invasion or predatory incursion, and whether there is evidence that they are TdA members. Finally, I expect that Judge Ramirez will reject Trump’s AEA invocation as baseless and find that the aliens have strong due process rights to challenge the administration in habeas proceedings.
However the Fifth Circuit rules, President Trump’s AEA invocation is surely headed to the Supreme Court yet again — probably this summer, and this time for a conclusive ruling.