The Case Against Judicial Deference to Executive Branch “Factual” Determinations in Alien Enemies Act Cases
President Trump has been trying use the Alien Enemies Act of 1798 as a tool for mass deportation. The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) “[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.” Multiple federal courts have ruled against Trump on the grounds that his invocation of the AEA is illegal because there is no declared war, and the activities of the Venezuelan drug gang Tren de Aragua (which Trump cites as justification for using AEA) are not an “invasion” or a “predatory incursion.”
One federal judge has issued a badly flawed ruling holding that TdA’s actions qualify as a “predatory incursion.” But with that exception, courts have rejected the Administration’s interpretation of the AEA, and there has been unanimous agreement that the meaning of terms like “invasion” is subject to judicial review and interpretation.
But some judges have held that the Administration does deserve deference on its factual determinations about whether a war, “invasion,” or “predatory incursion” have occurred, and if so whether they were perpetrated by a “foreign nation or government.” I previously critiqued such deference here. Legal scholar Rebecca Ingber has now published a more detailed critique in an insightful article for Just Security:
The question of who gets to make the predicate determination of whether the United States is at war or facing invasion or predatory incursion is as or more important as the assessment itself. That who should involve Congress, first and foremost, as the branch constitutionally assigned decisions to go to war. But in the case at hand, I mean, do judges get to review the president’s factual assertions that the United States is at war or facing invasion or predatory incursion, or is that left entirely to the executive’s discretion? This question, so framed, has implications far beyond the AEA cases. Given just how much extraordinary power the courts have recognized for the president during times of war, this power would be all-encompassing if it is left to turn on or off by the president alone – especially if the president can declare a situation is one of war or the like with no judicial check on whether that claim is completely unfounded….
Judg
Article from Reason.com
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