The ruling does not resolve whether Trump validly invoked the Act.
Today, the en banc US Court of Appeals for the Fifth Circuit declared the suit W.M.M. v. Trump moot, a key case exploring whether President Donald Trump’s recourse to the Alien Enemies Act of 1798 as a device for peacetime mass expulsions can be lawful.
The AEA provides for the detention and removal of foreign nationals from particular countries (including individuals with lawful status as well as those without) “[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.” The administration seeks to use the AEA to deport Venezuelans it says are members of the Tren de Aragua drug gang. Last autumn, the Fifth Circuit held that Trump’s action was unlawful because unlawful migration and drug smuggling do not constitute an “invasion” or a “predatory incursion” of the kind required to trigger the AEA. Subsequently, the court chose to rehear the matter en banc before all 17 judges of the court.
Today, the en banc court dismissed the case on procedural grounds, since all three named plaintiffs have been deported by the government under statutes that operate independently of the AEA. I will not attempt to weigh the procedural questions involved here, which are best left to those with deeper familiarity with that area of law.
For the moment, the core issue of Trump’s invocation of the AEA remains unresolved within the statute itself. The dismissal of the appeal—presumably—also vacates the original Fifth Circuit panel’s ruling.
In my article, “Immigration is Not Invasion” (which is presently under submission to law reviews), I provide a thorough overview of why the term “invasion” as used in the Constitution and in the AEA must denote a military assault, not unlawful migration, drug trafficking, or other akin activities. I also spell out there the serious consequences of adopting a broad reading of invasion. Among other things, such a broad reading would empower the federal government to suspend the writ of habeas corpus (thereby allowing detention without due process, including of U.S. citizens) at any moment. It would also grant states the power to “engage in war” with neighboring foreign nations at nearly any time, even without congressional authorization. Many of these concerns are also addressed in my amicus brief in the case, which I co-authored for the Brennan Center, the Cato Institute, and other groups.
In a concurring view attached to the en banc decision, prominent conservative Judge James Ho contends that the court ought to resolve the case on the merits and that the president should receive near-absolute deference when determining that an “invasion” has occurred. The far-reaching implications of this stance emerged during the en banc oral argument, when Chief Judge Jennifer Elrod pressed whether the government’s position would permit the president to invoke the Alien Enemies Act in response to a “British Invasion” of rock stars such as The Beatles, and DOJ attorney Drew Ensign was compelled to admit the answer would be “yes.”
Most of Judge Ho’s opinion largely rehashes earlier arguments in favor of total deference that he advanced in other solo writings. I respond to his arguments and similar ones in considerable detail in Part V of my “Immigration is Not Invasion” article. He does, however, advance one particular novel argument worth noting.
It’s undisputed that courts have no power to question a Congressional declaration of war. Courts may ask if Congress has declared war—but we do not look behind the declaration and ask whether we agree that there is a legitimate war at hand….
As a matter of statutory interpretation as well as separation of powers, there’s no basis for requiring courts to defer to a Congressional declaration of war, but not a Presidential proclamation of invasion.
That reasoning makes little sense. A congressional declaration of war is legally sufficient to create a state of war regardless of anything that preceded it. Under the Constitution, Congress may declare war on a foreign power without any provocation whatsoever (even if such an action is unjust and may breach international law). By contrast, an “invasion” is an objective state of affairs that exists in the world. It is a factual prerequisite for activating various constitutional and statutory emergency powers that cannot be exercised in its absence.
If the president could conjure an “invasion” simply by claiming it exists, he would turn dangerous emergency powers that are meant for exceptional circumstances into blank checks he could wield at will. That would run counter to the text of the AEA (which confines its use to real circumstances) and to the text and original understanding of the Constitution. If the Constitution had vested in the president (or any single actor) the authority to wield these sweeping emergency powers at any moment, that issue would almost certainly have been raised during the Constitutional Convention and by opponents of ratification. The same point applies to the AEA, which would have provoked broad opposition if understood in that fashion. These observations are also explored in greater depth in my article.
Judge Andrew Oldham likewise indicated a preference for a merits ruling that would grant the president near-total deference. He offers no fresh analysis, though he has previously authored several solo opinions defending that position. I have critiqued his arguments in depth in Part V of my article.
Litigation over the AEA and other “invasion”-related questions continues to unfold in courts nationwide, including within the Fifth Circuit. Thus far, most courts that have ruled on the merits have held that Trump’s invocation of the AEA is unlawful. Last year, in Trump v. J.G.G., the Supreme Court avoided deciding the merits but indicated that the meanings of the terms in the AEA are subject to judicial review. These cases and other related background are discussed in detail in Part I of my article. The issue is likely to resurface in the Fifth Circuit, and may also be considered by the Supreme Court at some point.
NOTE: I have added a few updates to this post.
