Yesterday, the en banc US Court of Appeals for the Fifth Circuit heard oral argument in W.M.M. v. Trump, a case challenging Trump's invocation of the Alien Enemies Act of 1798. The full Fifth Circuit - all 17 judges - were reviewing the panel decision in that case ruled that Trump's invocation of the AEA as a tool for detention and deportation of migrants is 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 when one of these extraordinary conditions, or a threat thereof, exists.
Throughout the extensive litigation over the AEA, in this case and others, the Trump Administration has claimed the president deserves absolute deference when he claims that an "invasion" exists. The absurd implications of this position were highlighted in yesterday's argument, when Fifth Circuit Chief Judge Jennifer Elrod (appointed by George W. Bush) asked whether the president could invoke the AEA in response to the "British Invasion" of rock stars, like the Beatles. "What if," she asked "the [President's] proclamation said 'we're having a British invasion.' They're sending all these musicians over to corrupt young minds…. They're coming over and they're taking over all kinds of establishments." Could courts then rule the president's invocation of the AEA was illegal? In response, Justice Department lawyer Drew Ensign admitted the government's position would require courts to still defer to the president, and allow him to wield the extraordinary emergency powers that can only be triggered by an actual "invasion."
The ridiculous implications of this response highlight a point emphasized in an amicus brief in the case, which I coauthored in the case on behalf of the Brennan Center, the Cato Institute, and others: the government's position would convert an emergency power that can only be used in extreme circumstances into a blank check the president can invoke any time he wants. I actually used the "British Invasion" example in my earlier article "Immigration is Not Invasion," though I don't know if Judge Elrod got it from there, or (more likely) came up with the same idea on her own.
Letting the president claim an "invasion" exists whenever he wants would create a very dangerous situation. In the event of "invasion," the president could use the AEA to detain and deport even legal non-citizen immigrants, with relatively little due process. In addition, when there is an invasion, the Constitution gives the federal government the power to suspend the writ of habeas corpus, thereby enabling it to detain people - including US citizens - without due process. Such sweeping power would pose a grave threat to civil liberties. For their part, state governments would have the power to "engage in war" in response, even without federal authorization. The Constitution was ratified only a few years before the AEA was enacted in 1798, and there is every reason to believe the meaning of "invasion" in the two documents in the same.
If either the Constitution or the AEA gave the president to declare the existence of an "invasion" at will and thereby invoke sweeping emergency powers whenever he wants, that point would have been raised by opponents at the time. Indeed, opponents did raise a variety of constitutional and other objections to the Alien Friends Act of 1798, which - unlike the AEA - really did give the president the power to detain and deport any non-citizens "as he shall judge dangerous order certain to the peace and safety of the United States." James Madison, Thomas Jefferson, and many others, therefore condemned the Alien Friends Act as unconstitutional, and a threat to civil liberties. By contrast, they mostly accepted the AEA, because it could only be used against citizens of countries with which the US is at war, or which had perpetrated an invasion or predatory incursion. I go into this history in greater detail in Part III "Immigration is Not Invasion."
During the Fifth Circuit oral argument, Ensign suggested that the issue of unjustified invocations of the AEA should be left to the political process. Congress, for example, could act to constrain the president. This ignores the fact that Congress already acted by mandating that the AEA can only be invoked in times of war, invasion, or predatory incursion, or the threat thereof. Unlike with the Alien Friends Act, a mere presidential assertion that a relevant danger exists is not enough. Rather, an invasion or predatory incursion, must actually exist in reality, not merely in the president's unsupported assertions.
As a practical matter, the idea that Congress can curb improper invocations of the AEA after the fact, is extremely dubious. Doing so would require new legislation that the president could easily veto. And the veto could only be overridden by a 2/3 majority of both houses of Congress, which is almost impossible to achieve at a time when many of the president's fellow partisans in Congress are likely to back him no matter what. This is one of several reasons why Congress instead constrained the president in advance, by setting out conditions that must be met before he can invoke extreme emergency powers. The same is true for the Constitution. Before the writ of habeas corpus can be suspended, there must be an actual "invasion" or "rebellion," not merely an unsupported assertion that one is happening.
Even if Congress could act more easily, this still would not relieve the courts of their duty to interpret and apply the text of the AEA and the Constitution, and objectively assess the relevant facts in cases that come before them. They cannot simply defer to the unsupported assertions of one of the parties to the litigation.
In part V of my "Immigration is Not Invasion" article, I outline additional reasons why courts should not defer to executive branch assertions that an invasion exists, under either the AEA or the Constitution. Elsewhere in the article, I explain why textual and historical evidence overwhelmingly shows that illegal migration and drug smuggling do not qualify as an "invasion." Rather, as James Madison put it in addressing this very issue, "invasion is an operation of war." It requires a military attack. The same is true of "predatory incursion," albeit the latter can be a smaller attack than an invasion. Fordham University law Professor Andrew Kent reaches similar conclusions in his important recent article on the AEA.
I hope the Fifth Circuit - and, ultimately, the Supreme Court - recognizes that the AEA and the Constitution do not give the President a blank check to invoke sweeping emergency powers whenever he feels like it. A contrary decision would go against the text and original meaning, and would create a grave danger to the civil liberties of immigrants and native-born citizens alike.
UPDATE: My recent Dispatch article, "Not Everything is an Emergency," outlines more general reasons why courts should not defer to executive invocations of emergency powers, but rather should require the government to prove that the supposed emergency justifying the use of extraordinary powers actually exists.
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