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Courts Can Check, and Have Checked, Executives' Military Judgment
Katherine Yon Ebright and Leah Tulin of the Brennan Center make the case against judicial deference to Trump's invocation of the Alien Enemies Act of 1798.

Last month, Brennan Center attorneys Katherine Yon Ebright and Leah Tulin, and I submitted an amicus brief in the Fifth Circuit case of W.M.M. v. Trump, opposing the Trump Administration's use of the Alien Enemies Act of 1798 as a tool for peacetime detention and deportation of immigrants. Katherine is a leading expert on the AEA and its history. 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.
Our brief was favorably cited by Fifth Circuit Judge Leslie Southwick in last week's oral argument in the case. Katherine and Leah have written this guest post addressing some key issues raised in the argument, and the AEA litigation more generally. I agree with virtually all their points! But what follows in the block quote is their work, not mine:
Last Monday, the Fifth Circuit heard oral argument in W.M.M. v. Trump, the first Alien Enemies Act challenge to make it to a circuit court in (somewhat) regular order rather than on an emergency motion. Among the issues raised in the case — which finds its way to the Fifth Circuit at the Supreme Court's direction rather than on a standard appeal — is the propriety of President Trump's invocation of the 1798 law to deport scores of immigrants he alleges are members of Tren de Aragua, a Venezuelan gang. As oral argument made clear, a central question is whether the judiciary may second-guess the president's determination that an "invasion" or "predatory incursion," a prerequisite for the law's use, is ongoing.
The Alien Enemies Act is a wartime law that affords the president tremendous regulatory, detention, and deportation power over noncitizens from hostile nations. It can be invoked when Congress declares war or when a "foreign nation or government" has perpetrated or threatened an "invasion" or "predatory incursion" against U.S. territory. On March 15, the president proclaimed that Tren de Aragua had perpetrated such an attack by facilitating unlawful migration and committing drug trafficking and other crimes. He referred to these acts as "irregular warfare" and attributed the gang's activities to the nation of Venezuela, which he called a "hybrid criminal state."
Common sense, of course, tells us that the nation is not being invaded by Venezuela and that gang violence, while a serious issue, is not war. Moreover, top administration officials, ranging from the CIA Director to the Chairman of the Joint Chiefs, have repeatedly told Congress the same thing.
No matter. In the Fifth Circuit, the government is arguing that the courts "must defer" to the president's proclamation, even if they disagree that an invasion or predatory incursion is underway. These matters, the government contends, are so heavily infused with political judgment that the courts are powerless to intervene.
The "political question doctrine" and other judicial deference doctrines have often precluded the courts' intervention in cases involving sensitive foreign policy and national security judgments. To that end, the Fifth Circuit judges expressed uncertainty about the permissible scope of review. Judge Oldham, in particular, asked whether any Supreme Court opinion supported the authority of the courts to "countermand the president of the United States in his determination regarding armed conflict" or to second-guess a chief executive, whether the president or a governor, in his identification of "an insurrection, an invasion," or other such events.
Petitioners' counsel, Lee Gelernt of the ACLU, rightly responded that the Supreme Court has repeatedly and specifically said that the judiciary may evaluate whether the Alien Enemies Act is properly invoked. Gelernt also discussed the Court's cases regarding law-of-war detention at Guantanamo Bay, in which the judiciary has carved out for itself a role in assessing whether detainees are in fact enemy combatants.
Beyond these examples, there is another line of cases that affirms the courts' power to overturn executive decision-making in sensitive matters of war, peace, and public safety. That caselaw begins with Sterling v. Constantin, a 1932 case in which the Supreme Court rejected a Texas governor's imposition of martial law. While acknowledging that the governor had broad discretion to proclaim an "insurrection" as "chief executive officer of the state and commander in chief of its military forces," the Court ruled that the governor's proclamation exceeded his authority. Because there was "never any actual riot, tumult, or insurrection" in reality, the governor's imposition of martial law fell beyond the "permitted range of honest judgment" an executive has for carrying out his constitutional obligation to faithfully execute the law.
Since 1932, Sterling's "permitted range of honest judgment" rule has been applied rarely but with great consequence. As those following the Alien Enemies Act invocation may know, the law was last used in World War II to intern 31,000 noncitizens of Japanese, German, and Italian descent. Several months after the United States entered the war, the Alien Enemies Act was complemented and quickly overshadowed by Executive Order 9066 — the authority used to incarcerate more than 120,000 Japanese Americans, including tens of thousands of U.S. citizens, on the West Coast. Applying the rule in Sterling, the courts prevented this second authority from being applied to German Americans on the East Coast.
In Schueller v. Drum and Ebel v. Drum, courts rejected claims of military necessity made by General Drum of Eastern Defense Command, who sought to apply Executive Order 9066 to target German Americans in Pennsylvania and Massachusetts. The judge in Schueller observed, "The normal civilian life of the area was being pursued . . . and it could not be honestly said that ordinary law did not adequately secure public safety." The military could not use an exceptional wartime authority — even one signed by the president and backed by the Congress — to dislodge constitutional rights when no "exigency of war" existed in fact.
Schueller and Ebel were decided in 1943, at a time of immense concern and uncertainty regarding the national security. They stood in stark contrast to the reflexive judicial deference on display in Korematsu v. United States, the 1944 Supreme Court case upholding Japanese incarceration on the West Coast that has since been rightly and roundly condemned as "wrong the day it was decided." Indeed, Schueller and Ebel have since been held out by some as evidence that German Americans were treated more fairly than Japanese Americans because of racial prejudice. But those decisions also stand out as powerful examples of the critical role that the judiciary can and should play in protecting individual civil liberties against unsupported claims of a national security threat.
There are other cases that support the authority of the courts to check "manifestly unauthorized exercises of power," even in wartime. Notably, Ex parte Milligan countermanded the president's approval of the use of military commissions in Indiana, citing "judicial knowledge that in Indiana the Federal authority was always unopposed." We discuss Sterling, Milligan, and other relevant cases in an amicus brief filed in the Fifth Circuit on behalf of the Brennan Center, Cato Institute, and law professors Ilya Somin and John Dehn.
But Sterling, and particularly Schueller and Ebel, should weigh heavily in this case, given the Alien Enemies Act's role in World War II internments and the breadth of the power the administration is trying to unlock through its use of the law in peacetime. A Department of Justice memorandum on the current Alien Enemies Act invocation mentions the possibility of warrantless house raids and summary deportations that bypass protections for refugees. When the facts are so clear, and the stakes of judicial deference are so high, the courts must exercise their independent judgment lest they sanction another mistake that will echo through our nation and legal community for generations.
I (Ilya Somin) 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.
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>Common sense, of course, tells us that the nation is not being invaded by Venezuela and that gang violence, while a serious issue, is not war
No, common sense does not tell us that. Which is why so many people consider the invasion by these criminal gangs to be an invasion. And I would say that when a foreign criminal gangs is taking over apartment buildings that yes that is an invasion.
This is the first and biggest hurdle - *explain* why it is not an invasion, don't just handwaved this core issue away.
+1
The government or military of Venezuela is not attacking or sending troops to the US. Gang members are not the Venezuelan military. That is why it is not an invasion. Words have meaning, and the foundation of our legal system is that the meaning of the words in the laws must be followed.
So the remedy if Venezuela sends paramilitary gangs to invade, occupy, and plunder the US-- which is what's happening-- is what? The position of the brief appears to be that so long as they're not in uniform, there's little the government can do, they'll be plundering for years as they get their "due process" and delay to infinity. This just can't be right. If so, it's the end of the American experiment because the blueprint for occupation is obvious, simply have your troops wear civvies and then send them in.
Is to smack the people in the face who lie and claim that Venezuela is sending anyone to invade, occupy, or plunder the U.S., since in fact every single word of that is false, including "and" and "the." Venezuela isn't sending anyone. They're not paramilitary. And they're not invading, occupying, or plundering.
The remedy, if any of that were actually happening and you weren't lying, would be to declare war on Venezuela. Not to arrest a few random Venezuelans for having tattoos and then send them to a concentration camp in a random third country.
If they're here illegally and they WEREN'T sent by their government, then they are infiltrating and waging war against the United States outside of the rules of war and are war criminals operating on American soil. The remedy is to execute them. That's fine too, mass deportation was after all the moderate solution.
Please have enough self awareness to realize how dumb that is.
They may or may not be here illegally. They were not sent by their government. They are not waging war against the United States. Stop being fucking stupid. They are criminals. Crime and military attack are entirely different things.
The Italian mafia was and is not waging war against the United States. The Russian mafia was and is not waging war against the United States. TdA was and is not waging war against the United States. The Crips were and are not waging war against the United States. The Mongols motorcycle gang were and are not waging war against the United States. (The J6 insurrectionists were waging war against the United States. )
It's not an invasion because it doesn't meet any of the criteria for being an invasion. They're drug dealers, not an army. They're trying to sell drugs. Maybe commit some other crimes. Not trying to conquer territory for a foreign country. Criminals and armies are very different things that act in very different ways for very different purposes.
And of course even if they were invaders, which they're not, they're a gang, not a foreign government, so that's separately fatal to the argument. The AEA only applies to acts by foreign governments.
So they're foreign forces infiltrating and occupying the United States but operating outside the rules of war because they're not technically sanctioned by their government? If so, then they're war criminals and the remedy is to simply execute them. Your proposal is acceptable.
German agents during WW1 and WW2 were not here to conquer territory in the United States either. There were there just to vandalize. Maybe commit some other crimes.
Dr. Ed has given your comment a thumbs up!
Of course Dr. Ed's state is being 'invaded' by inspirational Somalian refugee HS soccer tournament winners so he's a little freaked out.
I am guess that Somin has never had any experience with military judgment. Maybe he once watched a WWII movie.
Has there ever been a wrong-er pundit than Somin?
This guy stacks Ls like no one else.
There is a reason he is called 'Ilya the Lesser'.
Unsurprisingly, the cultists deem that any attempt at suggesting that Dear Leader does not have unlimited executive power is by definition wrong and ignorant
Except that no one here has done that.
Spare a moment to consider again the political questions doctrine. During this time of national crisis, a SCOTUS majority mad for political power is making up procedural hurdles in case after case. It's aim is to spare the Executive from merits review, in cases where to reach the merits would leave no options, except to rebuke the administration, or to make the Court itself a laughing stock.
With that as backdrop, look out for the political questions doctrine. It is too easy to view it as an unbounded grant of Court discretion.
The political questions docterine needs articulable limits. If anyone can tell me what those currently are, I would welcome to hear it.
My own suggestion would be to take the impeachment power as a model. That tells us that the jointly sovereign People intended in one explicitly defined context to let unbounded political judgments made respectively in two houses of the legislature decide case outcomes. In short, the power is defined Constitutionally, and limited articulably to a specific class of cases. It is not a tool left lying around for the Court to pick up at its own discretion.
Brennan is going to go to jail. I’d get off that train quick fast if I were you. “Center for Justice”.
Why cannot the President and the Executive Branch simply say the Tren de Aragua is a modern version of the Barbary Pirates that have made landfall. That are abusing Americans, stealing, and even killing Americans. So just as we went to the shores of Tripoli, we now go to wherever in America to rid ourselves of this transplanted menace? Just asking.
Because it is for Congress to combat this kind of piracy. In the Barbary war, Congress had passed a special law specifically authorizing the President to use military force against the Principality of Tripolitania (specifically) if certain conditions occurred, and those conditions clearly happened.
So if we follow the Barbary Pirates precedent, then it is for Congress to decide to pass a special law authorizing the President to use military force against Tren de Aragua (as it did more recently for Al Qaada). It is not for the President to act on his own.
Two additional relevant cases.
1. Ludecke v. Watkins. “Whether and when it would be open to this Court to find that a war, though merely formally kept alive, had in fact ended is a question too fraught with gravity even to be adequately formulated if not compelled.”
In this quote, the Ludecke Court certainly made clear that it would need compelling circumstances to entertain a challenge to a Congressional declaration of war based on no war “in fact.” But it nonetheless said that should such compelling circumstances arise, the question is open and potentially entertainable. And if it can entertain a factual challenge even to a Congressional declaration of war, it can entertain one to a Presidential proclamation based on invasion or predatory incursion.
2. Duncan v. Kohanamoku. In this case, the Suoreme Court reviewed suspension of the writ of habeas corpus in Hawaii due to “invasion.” It held that while the Japanese attack on Pearl Harbor was certainly an invasion justifying suspension and declaration of martial law in its immediate aftermath, by 1944, when Kohanamoku was arrested, the fortunes of war had changed sufficiently that there was no longer enough of a danger of invasion to warrant the declaration of martial law, and accordingly the continued suspension had become unlawful. While not an AEA case, this case nonetheless compared a proclamation of invasion against facts in a very straightforward way, making clear the matter was one for judicial review.