The Volokh Conspiracy
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Trump (Partially) Wins an Alien Enemies Act Case
In a badly flawed decision, a federal district court ruled that Trump can invoke the AEA because the Tren de Aragua drug gang's activities amount to a "predatory incursion."
For the last few weeks, there has been ongoing litigation over President Trump's effort to use the Alien Enemies Act of 1798 as a tool for mass deportation. The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) "[w]henever 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." Four federal judges - three district courts and Judge Henderson of the DC Circuit - have ruled that Trump's invocation of the AEA is illegal because there is no declared war, and the activities of the Venezuelan drug gang Tren de Aragua (which Trump cites as justification for using the AEA) do not qualify as an "invasion" or "predatory incursion."
Yesterday, the Trump administration finally partially won one of these AEA cases, because Judge Stephanie Haines of the Western District of Pennsylvania (a Trump appointee) ruled in ASR v. Trump, that TdA's activities qualify as a "predatory incursion."
Importantly, the judge did not accept the Trump Administration's ultra-broad view of what counts as an "invasion." The focus is on "predatory incursion," a less clear and less well-understood term. Judge Haines rejected both the government's and the plaintiffs' proposed definitions and more or less split the difference between them. She decided that "predatory incursion" means "a hostile entry into the United States by a cohesive group of individuals, such as a military detachment or a designated Foreign Terrorist Organization, who are united by a common goal of causing significant disruption to the public safety—whether that be the safety of persons, properly, or pecuniary interests—of those within the United States."
This is less bad than accepting a broad definition of "invasion" (a move that would have terrible constitutional implications, such as giving the federal government the power to suspend the writ of habeas corpus at all virtually all times). It is also a bit less bad than adopting the administration's interpretation of "predatory incursion," which would include any illegal migration or drug smuggling.
Nonetheless, I still think Judge Haines got this question seriously wrong. Among other things, her definition of "predatory incursion" is broad enough to render "invasion" superfluous. By her definition, any "invasion" would also be a "predatory incursion." Any military attack or "operation of war" (as James Madison defined "invasion" in his Report of 1800 discussing the Alien and Sedition Acts, of which the AEA was a part) necessarily involves "a hostile entry into the United States by a cohesive group of individuals…. who are united by a common goal of causing significant disruption to the public safety." A longstanding rule of interpretation holds that courts should not interpret statues in a way that renders any part superfluous. This is particularly true of the "invasion" provision of the AEA, which has traditionally been considered a central element of the statute.
In addition, Haines' definition has the implication that the US experiences "predatory incursions" at virtually all times. After all, virtually any organized crime organization of international scope qualifies as "a cohesive group of individuals… who are united by a common goal of causing significant disruption to the public safety" especially if "public safety" includes protection of "pecuniary interests" (which Judge Haines says it does). Any organized group engaged in smuggling contraband qualifies! By that standard, the US was constantly undergoing "predatory incursions" during Prohibition, when there was constant illegal cross-border smuggling of alcoholic beverages, and that smuggling surely impacted the "pecuniary interests" of various US businesses that competed with bootleggers. This implication of Judge Haines' definition renders it absurd, and it thus violates the longstanding canon against absurdity.
Four other court decisions (including 2 by conservative judges) have more properly defined predatory incursion as a kind of lower-level military attack, smaller than invasion. This is in accordance with Founding-era evidence, and avoids the redundancy and absurdity created by Judge Haines' definition.
Judge Haines is also unpersuasive in concluding that TdA's "predatory incursion" is undertaken by "a foreign nation or government." She gives too much credence to the Administration's assertions - rejected by its own intelligence agencies - that TdA is operating at the behest of the Venezuelan government. More generally, she errs in following Judge Rodriguez of the Northern District of Texas (who nonetheless ruled against Trump), in giving broad deference to the administration's factual (as opposed to legal) claims about whether an "invasion" or "predatory incursion" has occurred.
I explained why such deference is misguided in my critique of Judge Rodriguez's opinion:
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 simply by asserting Y has happened, even if the claim is false. This is especially dangerous in case 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" [or a "predatory incursion"] exists is pretty obviously false, and pretextual.
I would add the same goes for claims that a private organization is actually acting on behalf of a state.
Judge Haines' decision is not all good news for Trump. She also ruled that the government isn't providing detainees adequate notice of their potential deportation, so for now deportation remains on hold for those covered by her ruling (not clear how many people are involved). Furthermore, (like earlier AEA decisions decisions by other judges), she at least implicitly rejected the view that the definitions of "invasion" and "predatory incursion" are unreviewable political questions.
But, overall, this is a poorly reasoned decision on several key points. I hope it will be reversed on appeal.
