The Volokh Conspiracy
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Federal Court Issues Two Important Rulings Against Trump in Alien Enemies Act Case
Federal district court Judge Fernando Rodriguez ruled that Trump invoked the AEA illegally, and that migrants threatened with deportation under the Act can file class action habeas petitions.
Today, US District Court Judge Fernando Rodriguez (Southern District, Texas) issued two important ruling against the Trump Administration in J.A.V. v. Trump, an Alien Enemies Act case. The first holds that Trump's invocation of the AEA is "unlawful" and imposes a permanent injunction against its use against migrants involved in the lawsuit. The second certifies that Venezuelan migrants targeted by Trump's invocation of the Act may file a habeas corpus class action to challenge its use against them.
The AEA can only be used to detain and deport immigrants in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." Judge Rodriguez, a Trump appointee, ruled that the AEA's use by Trump against Venezuelan migrants who are supposed members of the Tren de Aragua drug gang is illegal because TdA's activities don't qualify as an "invasion" or "predatory incursion":
Petitioners' briefing contains numerous sources contemporaneous to the enactment of the AEA in which "invasion" and "predatory incursion" expressly reference or imply military action.Those sources include dictionary definitions, historical records such as letters, and court decisions….
Respondents do not challenge these usages. Instead, they contend that other
contemporaneous sources reflect a broader understanding of "invasion," with no express or implicit military requirement. In support of their construction, however, they provide only two examples, both of them from dictionaries….To augment the parties' submissions, the Court reviewed numerous historical records using "invasion," "predatory incursion," and "incursion" for the period from 1780 through 1820…. In the significant majority of the records, the use of "invasion" and "predatory incursion" referred to an attack by military forces. This held true even when the historical record did not concern the Revolutionary War or the War of 1812. The usages of "predatory incursion" at times referred to entries by Native Americans into the western territories, as did usages of "incursion." But even these records refer to an organized group of armed individuals entering an area to attack a fort, settlement, or town, and the writer typically discussed the need for a military response to the entry….
The Court's research for judicial decisions that utilized "predatory incursion" during the relevant time period returned only two results. In both usages, the courts referenced "predatory incursions" to describe conduct by Native Americans, in one instance as part of an "Indian war" and in the other in connection with the authority of a military officer. See Huidekoper's Lessee v. Douglass, 3 Cranch 1, 7 U.S. 1, * 7 (1805) (explaining the passage of a statute as motivated by the fact that "an Indian war existed on [Pennsylvania's] frontier[,]" and the state's population were "bound by their dearest interests to watch and repel the predatory incursions of the Indians"); Russell's Lessee v. Baker, 1 H. & J. 71, 1800 WL 441, at *6 (Gen. Ct. Maryland 1800) ("But it does not follow under this grant of power that he had a right to declare war or make peace; for there is no instance of a captain general of an army having the power, as captain general, to do either. The powers, granted under this section of the charter were granted to guard against and repel the predatory incursions of the Indians . . . and to prevent and to suppress insurrections[.]")….
Judge Rodriguez also notes that references to "invasion" in the Constitution refer to armed military attacks, and this should affect interpretations of its use in the AEA, enacted just a few years earlier.
He also rejects the idea that the meaning of "invasion" and "predatory incursion" are "political questions" not subject to judicial review.
This ruling follows similar decisions by a federal district court in Colorado, and Judge Henderson of DC Circuit, all of which also rejected the "political question" argument and held that, in the AEA, "invasion" and "predatory incursion" refer to armed attacks. Multiple earlier court decisions have reached the same conclusion with respect to the meaning of "invasion" in the Constitution. There is a growing consensus on this question among both liberal and conservative judges. The Colorado decision was issued by a liberal Biden appointee. But Henderson and Rodriguez are both conservative Republican appointees. So far, Judge James Ho of the Fifth Circuit is the sole judicial dissenter on the meaning of "invasion." I critiqued his position here.
I have defended the view that "invasion" requires a military attack, in greater detail in my own previous writings on the meaning of the term in the AEA and the Constitution.
There is one potentially significant flaw in Judge Rodriguez's analysis. While he concludes that the meaning of "invasion" is not a "political question," he argues that the factual determination of whether an "invasion" exists is. So far, the Trump Administration has not claimed there is an armed attack on the US conducted by a foreign nation or government, and thus he rules against them. But if Trump - or a future president - were willing to lie about this issue, and falsely assert there is such an armed attack, Judge Rodriguez would presumably defer.
I think this reasoning is a mistake. Making determinations about relevant facts is a standard function of the judiciary. If the law says the government is allowed to do X whenever Y occurs, courts must make a determination on whether Y has actually happened or not. Otherwise, the government could do X anytime it wants. This is especially true of emergency wartime powers that severely curtail civil liberties, like those authorized by the AEA (detention and deportation with little due process, even for legal immigrants). I would add that, under the Constitution, a state of "invasion" allows state governments to "engage in war" in response and the federal government to suspend the writ of habeas corpus (thereby empowering it to detain people - including US citizens - without due process). Such sweeping authority cannot simply be left to the unreviewable discretion of one person. That's the kind of arbitrary royal prerogative the Founders sought to prevent.
It may be reasonable to defer to the executive on factual issues when the evidence is close, and ambiguous, and the government is making use of some kind of superior expertise. But not when the assertion that an "invasion" exists is pretty obviously false, and pretextual.
I will not comment on the class action ruling in detail, as I am not a class action expert. But it is significant. For reasons I summarized here and here, class action certification is crucial to ensuring that migrants targeted for deportation under the AEA have a meaningful opportunity to contest the government's actions in court.
