Fifth Circuit Will Rehear Alien Enemies Act Case En Banc

It will review a panel decision holding that Trump could not invoke this sweeping wartime authority by claiming illegal migration and drug smuggling qualify as an "invasion."

AI-generated image.

Earlier this week the US Court of Appeals for the Fifth Circuit decided to grant an en banc rehearing in W.M.M. v. Trump. The panel decision in that case ruled that Trump's invocation of the Alien Enemies Act of 1798 was illegal, because illegal migration and drug trafficking and other activities of the Venezuelan drug gang Tren de Aragua do not qualify as a war, "invasion," or "predatory incursion." The AEA can only be used to detain and deport immigrants when one of these extraordinary conditions, or a threat thereof, exists.The case will now be reheard by all 17 active Fifth Circuit judges.

In an amicus brief I coauthored in the case on behalf of the Brennan Center, the Cato Institute, and others, we argue that "invasion" and "predatory incursion" require a military attack, and that courts should not defer to presidential assertions that these extraordinary conditions exist. As James Madison put it in addressing this issue, "invasion is an operation of war."

Otherwise, the AEA and the Constitution's grant of extraordinary emergency powers when an "invasion" exists could be invoked by the president anytime he wants, thereby creating grave dangers to civil liberties and to the separation of powers. For example, the Constitution states that, in the event  of "invasion," the federal government can suspend the writ of habeas corpus, thereby authorizing indefinite detention without due process - not only of recent immigrants, but also US citizens.

Prominent conservative Judge Andrew Oldham wrote a lengthy dissent to the panel decision, arguing that the definition of "invasion" and other terms in the AEA is left to the unreviewable discretion of the executive. I outlined some key flaws in his argument here. In a solo concurring opinion in United States v. Abbott, a previous Fifth Circuit en banc case, Judge James Ho, another well-known conservative, similarly argued  the definition of "invasion" is an unreviewable "political question," left to the determination of the executive, and also of state governments (under Ho's approach, they too can claim and "invasion" exists whenever there is illegal migration or drug smuggling). I criticized Judge Ho's reasoning here.

Both Ho's approach and Oldham's would give the president (and, in Ho's case, also state governments) unlimited authority to declare an "invasion" at any time, and thereby wield sweeping authority to undermine civil liberties and the separation of powers. The federal government could use this power to detain and deport even legal immigrants, and to suspend the writ of habeas corpus (including for US citizens). Under the Constitution, in the event of "invasion" state governments can "engage in war" even without congressional authorization. I wrote about the dangers of that in greater detail here, as well as in the amicus brief.

Such vast unilateral authority goes against the text and original meaning of both the Constitution and the Alien Enemies Act. British violations of the writ of habeas corpus were one of the main grievances that led to the American Revolution, and the Founding Fathers did not intend to give the president  the power to replicate those abuses anytime he might want.

I will have more to say about these issues as the AEA litigation continues in this case and in other cases currently before various federal courts. We will likely file an updated version of our amicus brief before the en banc Fifth Circuit.

Comments

[jimc5499]

Yawn! Wake me up when the US Supreme Court rules on this.

[SRG2]

Good test of whether someone who claims to be an originalist is merely a cultist in disguise

[Tim]

Something fun about our age:

Without looking at other posts from you, I genuinely have absolutely zero idea which side you're calling culty.

[Lee Moore]

It's SRG2. MAGA is the cult.

That aside :

1. I am delighted to see that SRG2 recognizes that "originalism" is not merely a constitutional interpretive doctrine, but a general textualist doctrine equally applicable to statute law.

2. But I'm not sure what piece of the question, in SRG2's opinion, hangs on an originalist interpretation rather than a simple textualist one. At first glance there doesn't seem to be anything in the majority opinion which is based on the fine distinction between the 1798 meaning of "invasion" or "predatory incursion" and the 2025 meaning of those words. Instead the majority seems to approach the question largely on the basis of their view of the context.

They do appeal to Johnson's and Webster's more or less contemporary dictionaries but those do not really advance the majority's argument, since "invasion" is not defined there in any specifically military sense. Indeed Webster slightly undermines the majority's take by saying that "invasion" means :

A hostile entrance into the possessions of another; particularly , the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force. An attack on the rights of another; infringement or violation.

"Particularly" indicates that there are other cases that fall outside the particular military cases described.

The majority relies on the argument that there is a military context overall. And maybe they're right. But this has nothing to do with a particular 1798 flavor to "invasion." The same argument could be run just as well with a 2025 dictionary.

So it's not at all clear why SRG2 thinks this has anything to do with originalism.

[Riva]

I think this is a good place to post a bit of the most excellent dissent from Judge Oldham:

For 227 years, every President of every political party has enjoyed the same broad powers to repel threats to our Nation under the Alien Enemies Act (“AEA”). And from the dawn of our Nation until President Trump took office a second time, courts have never second-guessed the President’s invocation of that Act. Not once. The reason is simple: Determining whether the AEA’s preconditions are satisfied—whether there is a declared war, or “any invasion or predatory incursion” being “perpetrated, attempted, or threatened,” 50 U.S.C. § 21—depends upon “matters of political judgment for which judges have neither technical competence nor official responsibility.” Ludecke v. Watkins, 335 U.S. 160, 170 (1948). Time and time and time again, the Supreme Court has instructed that the President’s declaration of an invasion, insurrection, or incursion is conclusive. Final. And completely beyond the second-guessing powers of unelected federal judges. That rule does not only apply to Presidents. It also applies to Governors. In one famous case from the 1930s, for example, the Governor of Texas declared an “insurrection” because some oil barons in East Texas were pumping too much crude. Sterling v. Constantin, 287 U.S. 378, 387 (1932). It seems patently absurd to call profit-maximizing business practices an “insurrection.” But that’s irrelevant. The Supreme Court unanimously held: “By virtue of his duty to ‘cause the laws to be faithfully executed,’ the executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen. His decision to that effect is conclusive.” Id. at 399 (emphasis added).

For President Trump, however, the rules are different. Today the majority holds that President Trump is just an ordinary civil litigant. His declaration of a predatory incursion is not conclusive. Far from it. Rather, President Trump must plead sufficient facts—as if he were some run-of-the-mill plaintiff in a breach-of-contract case—to convince a federal judge that he is entitled to relief.

That contravenes over 200 years of legal precedent. And it transmogrifies the least-dangerous branch into robed crusaders who get to playact as multitudinous Commanders in Chief

[Mr. Bumble]

Your bleedin' heart will tell on you...

[Brett Bellmore]

""invasion is an operation of war.""

But, Madison did not JUST say that. He went on to say,

"To protect against invasion is an exercise of the power of war."

So I read him as saying, not that no act or acts can be an invasion absent a war, but instead that the occurrence of an invasion means you ARE at war.

War does not define "invasion", IOW, but instead, invasion defines "war".

[shawn_dude]

"Invasion" is a coordinated, deliberate act. Otherwise, refugees fleeing a natural disaster in their home country to a next door country would count as an "invasion."

[Glaucomatose]

A lot of Trump supporters just nodded their heads and asked "Yes, and?"

[Joe_dallas]

Of course it wasnt an invasion - Biden did everything except extend a formal invitation

[Stephen Lathrop]

A tangentially related, but useful question: Do lawyers agree on the definition of a, "political question?" My impression is that is left vague, and it gets custom-tailored anew almost every time someone wants to invoke the notion of the political question.

My suggestion: A political question which a court may not consider is any question the jointly sovereign people properly reserve for their own decision, and thus put beyond reach of judicial authority.

Two examples to illustrate:

1. The question which of multiple candidates won an election. No court should have power to settle that by decree. The courts should have power to order that elections be conducted in such a way that the people themselves are maximally bolstered in their own ability to decide the outcomes by transparent voting and counting procedures. That should be the limit of judicial power on election outcomes.

2. The question whether a government officer sworn to allegiance to the Constitution has performed faithfully to the oath. It is the people themselves who imposed the oath. They need, but do not currently have, a prescribed procedure to say whether their oath requirements have been satisfied. The right procedure ought to settle case-by-case any questions which arise, and turn on use of a reliable process to answer whether the people are satisfied that the oath was faithfully performed. That seems to me a proper subject for a constitutional amendment. The debates that advocacy and passage would entail might prove unusually civically informative.

[Glaucomatose]

There's a decent amount of question-begging here, though. E.g. on 1, the courts can order that elections be conducted in such a way that the people themselves are maximally bolstered in their own ability to decide the outcomes by transparent voting and counting procedures, but once they do that, and the election is conducted, and Candidate A got 1,000 votes and Candidate B got 900 votes, if Candidate B declares himself the winner and gets the relevant election officials to back him up, are the courts not allowed to step in (on petition from Candidate A, of course)? You could certainly argue that ensuring the candidate who got the most votes is declared the winner is part of "conducting" the election, but this goes to the core of the argument about what counts as "political."

[Stephen Lathrop]

Glaucomatose — Perhaps a remedy responsive to your critique could be found under No. 2 above, the part about oath breaking.

Otherwise, yes, there is an argument that courts ought to step beyond their proper authority if they aim to do right, but not if they aim to do wrong.

Presumably you did see that I was attempting to address, "the core of the argument about what counts as 'political.' "

[TextFirst]

How exactly does this crimped interpretation of invasion square with Pancho Villa? It's universally recognized as an invasion, but he wasn't the Mexican government; quite the opposite, he was explicitly in rebellion against the Mexican government at the time. And it was about 500 guys, far fewer than the number invading us now. The US Army responded by shooting them, chasing them, and they kept shooting until they ran out of ammunition. As botched as the subsequent punitive expedition was, the original response was outstanding. And they did it all without going to court for permission to resist the invasion. Why can't we do that now?

[Joe_dallas]

Text - the pancho villa is a good comparison -

One notable difference - The Mexican government didnt participate in facilitation of pancho villa's invasion. Several governments along the central american corridor did assist in various forms of facilitation during the last several years.

[KevinP]

I came here to mention this exactly.

Ilya never listens to any contrary opinion, but how would he classify this invasion?

[Michael P]

Pancho Villa's troops were poor, disenfranchised, oppressed people who were just trying to vote with their feet and migrate to a land with more opportunity, of course.

[Kazinski]

"Both Ho's approach and Oldham's would give the president (and, in Ho's case, also state governments) unlimited authority to declare an "invasion" at any time, and thereby wield sweeping authority to undermine civil liberties and the separation of powers."

I don't see how it undermines seperation of powers, after all the Alien Enemies Act was an act of Congress.

Feel free to argue that it was unwise, but as Justice Jackson said in Youngstown:

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances and in these only, may he be said . . . to personify the federal sovereignty. If his act is held unconstitutional under thise circumstancies it usually means that the Federal Government as an undivided whole lacks power."

[Glaucomatose]

The authorization in the Alien Enemies Act applied only during an invasion. For the President to say “An invasion is whatever I say it is” is to override the limit that Congress used to define the scope of the President’s delegated power.

[Kazinski]

Or Predatory Incursion, which would encompass a pirate raid or maybe hundreds of gang members attempting to set up an extensive criminal enterprise.

[Joe_dallas]

The statute "...or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,...."

There really isnt a dispute that it is a predatory incursion. The only dispute is to what extent it is by a foreign nation or government. While, there are not "official actions " of any governments or foreign nations, several of central american countries were either complacent or assisted in the facilitation of the predatory incursion. The only question is whether that facilitation rose to the level intended in the statute.

[Lee Moore]

Not quite sure I agree with you. The majority (which found against Trump on the question of "invasion" and "predatory incursion") made a fine distinction between those questions and the question of whether the Venezuelan government was behind TdA's activities. And concluded that it could review the former, but not the latter :

For example, Petitioners here have challenged the President’s finding that the Maduro regime in Venezuela is directing the actions of TdA in this country. We interpret the Ludecke Court to have made conclusive the President’s “belief” that certain categories of aliens are enemies and engaged in hostile actions. Id. at 170. Thus, even though Petitioners insist there is no basis to find the Maduro regime is directing TdA’s action in the United States, it is not for a
court to review a President’s findings about the facts when he is employing the AEA.

They then go on to say that because "invasion" and "predatory incursion" require the interpretation of stautory text, they do have the authority to review the President's application of the facts that he perceives, to the statutory words "invasion" and "predatory incursion." This is not the case for the purely factual question of whether the Venezuelan government stands behind TdA, which is unreviewable.

[agarrett]

Is taking the case en banc a signal that they want to overturn the panel decision? Since the panel decided against the President, does this rehearing mean they want to reconsider, or is there an advantage to getting a full court decision on the record?

This is something well outside my own field, so it's an honest question - what does this signal, if anything?

[Kazinski]

It could mean they are going to reverse it, or narrow or expand the reasoning, but they don't usually go en banc just because.

[Lee Moore]

Prof Josh wrote a post about this. He speculated that the government had petitioned for en banc because they were concerned that SCOTUS might not take an appeal, because there was no circuit split. Thus better to go for en banc to try to get the decision reversed, so that SCOTUS inertia then works in the government's favor.

Obviously they have succeeded at step one, which is to get the decision en banced. Maybe that means that there's a majority unhappy with the panel decision. Or maybe it's just deference to the federal government - granting en banc when the Feds ask.

Prof Josh though the en banc 5th has a tendency to splinter off into incoherent decisions, with no clear majority opinion. So the government may very well not get a clear majority opinion, but maybe it'll just get a win, which SCOTUS might then decline to review until another Appeal Court arrives at the opposite decision. But again, maybe ICE has got a bit smarter about detaining people in the right judicial district, and keeping them out of Deep Blue courts.