Trump Says the Courts Have No Business Questioning His Dubious Definition of ‘Alien Enemies’
When President Donald Trump invoked the Alien Enemies Act (AEA) against alleged members of the Venezuelan gang Tren de Aragua in March, he implicitly asserted that they were “natives, citizens, denizens, or subjects” of a “foreign nation or government” that had launched an “invasion or predatory incursion against the territory of the United States.” But because Trump did not claim that the United States was at war with Venezuela or that Venezuela had invaded this country, it was not clear which “foreign nation or government” he was talking about.
That was one of the puzzles that the U.S. Court of Appeals for the 5th Circuit considered during a hearing on Monday. The case, W.M.M. v. Trump, involves detainees in Texas who argue that Trump improperly relied on the AEA, a rarely used, 227-year-old law, to summarily deport foreign nationals that the government has identified as Tren de Aragua members. Another issue raised by the case is whether federal courts have the authority to decide that question.
They do not, Deputy Assistant Attorney General Drew Ensign told the 5th Circuit, which is the first appeals court to consider whether Trump’s novel use of the AEA makes any legal sense. Several federal judges, including a Trump appointee in Texas, have rejected Trump’s idiosyncratic definition of “alien enemies,” saying it is contradicted by copious historical evidence. But according to Ensign, they had no business making that call. “The president’s determination that the factual prerequisites of the AEA have been met is not subject to judicial review,” he said. Alternatively, he argued, “it’s subject to extremely deferential review.”
Ensign’s main argument does not seem consistent with the Supreme Court’s April 7 decision in Trump v. J.G.G., which held that AEA detainess have a due process right to contest their designation as “alien enemies.” Although the justices did not address the legality of Trump’s AEA proclamation, they noted that “an individual subject to detention and removal under that statute is entitled to ‘judicial review’ as to ‘questions of interpretation and constitutionality’ of the Act,” as indicated by the Court’s 1948 ruling in Ludecke v. Watkins.
“The Supreme Court has made clear that statutory terms can always be reviewed,” Lee Gelernt, an American Civil Liberties Union lawyer representing the AEA detainees, told the 5th Circuit panel, which includes Judges Leslie Southwick, Andrew Oldham, and Irma Carrillo Ramirez. “All we’re asking is that these terms be interpreted, and we think when…you properly interpret them, [the law] requires a military
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