Our Amicus Brief in W.M.M. v. Trump - En Banc Fifth Circuit Alien Enemies Act Case

I coauthored the brief on behalf of the the Cato Institute, the Brennan Center for Justice, legal scholars Geoffrey Corn and John Dehn, and myself.

Yesterday, we filed our amicus brief in W.M.M. v. Trump, an Alien Enemies Act case currently before the en banc Fifth Circuit. I coauthored the brief, submitted on on behalf of the the Cato Institute, the Brennan Center for Justice (NYU), legal scholars Geoffrey Corn and John Dehn, and myself. Geoffrey Corn and John Dehn are leading academic experts on national security law, and former Army officers and military lawyers. Prof. Corn was formerly the Army's senior legal adviser on the law of war.

The brief builds on our earlier amicus brief in the same case, filed before a three-judge Fifth Circuit panel, which ruled against the Trump Administration. It argues that the it is illegal to use the Alien Enemies Act - which can only be invoked in the event of a war, invasion, or predatory incursion, or threat thereof - as a tool for peacetime deportation. Illegal migration and drug smuggling do not qualify as an "invasion" or "predatory incursion"; these terms refer to military attacks on US territory. And courts should not  defer to administration claims that an invasion has occurred, when it very obviously has not.

If courts endorse the broad definition of "invasion" advocated by the administration, dire consequences will follow. Border states would be able to engage in war against neighboring nations even without congressional authorization, and the federal government could suspend the writ of habeas corpus and detain people (including U.S. citizens) at will.

Parts of the brief draw on my new article, "Immigration is Not Invasion," which analyzes the meaning of "invasion" under the Constitution and the Alien Enemies Act, in greater detail.

Comments

[MaddogEngineer]

"I strenuously object!"

[Roger S]

About 50 million foreigners have moved into the USA in recent decades. It is the biggest invasion in the history of human civilization. Yes, it is an invasion.

[ah....Clem]

zOMFG!!! All those invaders streaming over the border to pick lettuce, milk cows, and replace roofs!!!

Whatever are we going to do?

[Roger S]

You are alluding to how some of them profited.

[Bob from Ohio]

"milk cows"

Machines milk cows already.

Lettuce picking machines already exist too.

[ah....Clem]

Machines milk cows already.

And the cows hook themselves up to the machines each morning all by themselves.

Um...sure, Jan.

If you were "Bob from Wisconsin" you might understand that about 70% of dairy farm workers there are undocumented and that the business would go bust without them. Machines and all.

Anyway, the point is that this has been the status quo for decades and is not an "emergency" by any stretch of the imagination.

[ah....Clem]

Illegal migration and drug smuggling do not qualify as an "invasion" or "predatory incursion"; these terms refer to military attacks on US territory."

Well, that's blatantly obvious to anyone who has not consumed too much flavor-ade. Hard to believe that it's even up for debate.

The only legal rationale here is declaring "facts don't matter" by saying executive branch findings are nonjusticiable, which basically amounts to a dereliction of duty on the part of the judges.

[Joe_dallas]

It cant be an invasion or predatory incursion since for all practical purposes, the biden administration did everything except issue a formal invitation.

[MollyGodiva]

Bonus points for correctly using "flavor-ade" instead of "kool aid".

[ah....Clem]

Even though we seem to be in the post-fact age, I'm old fashioned and think facts still matter. I understand that I'm in the minority.

[Life of Brian]

Poor Ilya one-note
Yelled "no invasion!"
Until he was blue in the face
For holding one note was his ace