The Volokh Conspiracy
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Our Fifth Circuit Alien Enemies Act Amicus Brief
The brief was filed on behalf of the Brennan Center, the Cato Institute, law-of-war scholar Prof. John Dehn, and myself.
Today, in the Fifth Circuit case of W.M.M. v. Trump, we submitted an amicus brief opposing the Trump Administration's use of the Alien Enemies Act of 1798 as a tool for peacetime detention and deportation of immigrants. The brief was filed on behalf of the Brennan Center for Justice at NYU, the Cato Institute, prominent law-of-war scholar Prof. John Dehn, and myself. I coauthored it with Brennan Center attorneys Katherine Yon Ebright and Leah Tulin, with the aid of valuable advice from Elizabeth Goitein (Brennan Center), and Prof. Dehn. Katherine is a leading expert on the AEA and its history, and Liza one of the nation' leading experts on emergency powers.
The fact that this brief is backed by organizations as ideologically diverse as Cato and the Brennan Center is a testament to the egregious nature of Trump's invocation of the AEA.
The brief is posted here, and also available at the Brennan Center website.
Here is a summary of the brief I prepared for the Cato Institute website:
The Alien Enemies Act of 1798 (AEA) is a wartime authority. Congress enacted the AEA under its constitutional war powers as an implementation of the law of war, which in 1798 allowed the government to detain or expel supposed "alien enemies." The AEA may be invoked only in the event of a declared war or "invasion" or "predatory incursion" by a foreign nation or government against U.S. territory. It has no peacetime applicability and has never previously been used outside of a major conflict. Before now, the only time the AEA was invoked absent a declared war was after Japan's attack on Pearl Harbor on December 7, 1941, just days before Congress declared war.
The Trump Administration's current invocation of the AEA, "Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua," falls well outside the law's scope. By its text, the President's Proclamation addresses unlawful migration, narcotics trafficking, and gang violence, none of which constitute an "invasion" or "predatory incursion." Under no interpretation of the law of war could these civil and criminal matters trigger the AEA's exceptional powers. The designation of the Venezuelan drug gang Tren de Aragua as a foreign terrorist organization (FTO) does not transform its activities into acts of war.
This case does not present a political question exempted from judicial review. But even if it did, established exceptions to that doctrine would apply. Courts may always check obvious mistakes and manifestly unauthorized exercises of power. And the judiciary's ability to act is at its apex when civil liberties are at stake. Courts have the power to correct the president's misappropriation of the AEA in peacetime — and can rely on the judicially manageable standards historically used to identify acts of war.
Should courts adopt the government's unfounded interpretation of the AEA or hold that the executive's pronouncements are unreviewable, there would be dire consequences. The president could leverage the law's power against any group of immigrants, including legal ones, the federal government could suspend the writ of habeas corpus at will, and states could "engage in War" at any time.
We plan to file similar briefs in other AEA cases working their way through the courts.
I have previously criticized Trump's invocation of the AEA as beyond the scope of the statute in a variety of writings. See, e.g., here, here, here, and here. I have also explained why Trump's AEA deportations violate the Due Process Clause of the Fifth Amendment.
UPDATE: The link to the brief in original version of this post was broken. I have now updated with a workable link.
