Courts Can Check, and Have Checked, Executives’ Military Judgment
Last month, Brennan Center attorneys Katherine Yon Ebright and Leah Tulin, and I submitted an amicus brief in the Fifth Circuit case of W.M.M. v. Trump, opposing the Trump Administration’s use of the Alien Enemies Act of 1798 as a tool for peacetime detention and deportation of immigrants. Katherine is a leading expert on the AEA and its history. The brief was filed on behalf of the Brennan Center for Justice at NYU, the Cato Institute, prominent law-of-war scholar Prof. John Dehn, and myself.
Our brief was favorably cited by Fifth Circuit Judge Leslie Southwick in last week’s oral argument in the case. Katherine and Leah have written this guest post addressing some key issues raised in the argument, and the AEA litigation more generally. I agree with virtually all their points! But what follows in the block quote is their work, not mine:
Last Monday, the Fifth Circuit heard oral argument in W.M.M. v. Trump, the first Alien Enemies Act challenge to make it to a circuit court in (somewhat) regular order rather than on an emergency motion. Among the issues raised in the case — which finds its way to the Fifth Circuit at the Supreme Court’s direction rather than on a standard appeal — is the propriety of President Trump’s invocation of the 1798 law to deport scores of immigrants he alleges are members of Tren de Aragua, a Venezuelan gang. As oral argument made clear, a central question is whether the judiciary may second-guess the president’s determination that an “invasion” or “predatory incursion,” a prerequisite for the law’s use, is ongoing.
The Alien Enemies Act is a wartime law that affords the president tremendous regulatory, detention, and deportation power over noncitizens from hostile nations. It can be invoked when Congress declares war or when a “foreign nation or government” has perpetrated or threatened an “invasion” or “predatory incursion” against U.S. territory. On March 15, the president proclaimed that Tren de Aragua had perpetrated such an attack by facilitating unlawful migration and committing drug trafficking and other crimes. He referred to these acts as “irregular warfare” and attributed the gang’s activities to the nation of Venezuela, which he called a “hybrid criminal state.”
Common sense, of course, tells us that the nation is not being invaded by Venezuela and that gang violence, while a serious issue, is not war. Moreover, top administration officials, ranging from the CIA Director to the Chairman of the Joint Chiefs, have repeatedly told Congress the same thing.
No matter. In the Fifth Circuit, the government is arguing that the courts “must defer” to the president’s proclamation, even if they disagree that an invasion or predatory incursion is underway. These matters, the government contends, are so heavily infused with political judgment that the courts are powerless to intervene.
The “political question doctrine” and other judicial deference doctrines have often precluded the courts’ intervention in cases involving sensitive foreign policy and national security judgments. To that end, the Fifth Circuit judges
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