DC Circuit Upholds District Court Order Blocking Deportations Under The Alien Enemies Act
Earlier today, the US Court of Appeals for the DC Circuit upheld a district court temporary restraining order blocking the Trump Administration from using the Alien Enemies Act of 1798 to deport Venezuelan migrants it claims are members of the Tren de Aragua drug gang. The Alien Enemies Act is the only one of the notorious Alien and Sedition Acts of 1798 still in force. But the Act can only be used in the event of a declared war, or an “invasion” or “predatory incursion” perpetrated by a “foreign nation or government.”
The ruling was a 2-1 decision. Judge Karen LeCraft Henderson (appointed by George H.W. Bush) and Judge Patricia Millett (appointed by Obama) each issued separate opinions upholding the trial court TRO for somewhat different reasons.
Judge Henderson’s opinion primarily emphasizes the point that there is no war, invasion, or predatory incursion going on, and therefore the legal preconditions for invoking the AEA have not been met. She includes an excellent analysis of the meaning of “invasion”:
First, the invasion must be “against the territory of the United States by any foreign nation or government.” 50 U.S.C. § 21 (emphasis added). The requirement that the “invasion” be conducted by a nation-state and against the United States’ “territory” supports that the Congress was using “invasion” in the military sense of the term See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 131 (1807) (describing levying war against the United States as “a military enterprize . . . against any of the territories of the United States”); Wiborg v. United States, 163U.S. 632, 633 (1896) (explaining that a group of seamen were charged with preparing for a “military expedition . . . against the territory and dominions of a foreign prince”). Undesired people do not arrive against the territory. But foreign armies can—and as the 1798 Congress feared might—invade the territory of the United States. Second, the invasion may be actual, “attempted, or threatened.” 5 U.S.C. § 21. Again, when used in reference to hostilities among nations, an attempted or threatened invasion of the United States would mark a logical trigger for enhanced presidential authority. Third, and relatedly, the conditional list of triggering events—a declared war, invasion or predatory incursion—must be read against the means the Congress employed to combat the same. The AEA authorizes the President to restrain and remove the nationals of a belligerent foreign power. Such power tracks when invasion is considered in its military sense.
Finally, consider history. The Alien Enemies Act was enacted by the Fifth Congress amid an actual conflict—the Quasi-War—with France, a foreign power. War was front and center in the minds of the enacting legislature. A little over one month before enacting the AEA, the same Congress authorized the President to raise a standing army of 10,000 men to combat any French invasion. But he could do so only “in the event of a declaration of war against the United States, or of actual invasion of their territory, by a foreign power, or of imminent danger of such invasion.” Act of May 28, 1798, ch. 47, § 1, 1 Stat. 558. This language bears more than a passing resemblance to the language of the AEA, which the Congress enacted a mere thirty-nine days later. In his most famous exposition against the Alien and Sedition Act, Madison explained that an “[i]nvasion is an operation of war.” James Madison, Report of 1800 (Jan. 7, 1800), in Founders Online [https://perma.cc/2D3N-N64Z]. In such times, the “law of nations” allowed for the exp
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