More on “Invasion,” the Alien Enemies Act, and the Political Question Doctrine
In a previous post, I argued that Donald Trump’s plan to use the Alien Enemies Act of 1798 as a tool for peacetime mass deportation is illegal, but also noted that courts might nonetheless refuse to invalidate the plan, because they might (wrongly) conclude that the issue is a “political question” that judges are not allowed to consider. The Alien Enemies Act gives the president the power to detain and deport migrants when 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.” In that event, the president can detain or remove “all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized.”
In a post at the Originalism Blog, Michael Ramsey—a leading scholar of constitutional foreign affairs law—largely agrees with my analysis. But he suggests the political question issue is more easily resolved than I thought:
I think the analysis can be more simple. The question, in my view, isn’t whether there is an invasion (which indeed might be a political question, even under the original concept of political questions), but whether it—whatever it is—is “perpetrated … by any foreign nation or government.” Since that’s clearly not the case, for the reasons Professor Somin says, a court would simply be called on to enforce the statute as written, which is comfortably within the judicial power.
Focusing on the words “foreign nation or government” could indeed be an alternative way to reje
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