132. Five Questions About Trump's Alien Enemy Act Proclamation

A quick take on some of the questions raised by President Trump's ... dubious invocation of a 1798 statute as a basis for arresting, detaining, and removing non-citizens with ties to Tren de Aragua.

[An edited version of this post also appears at Just Security.]

Welcome back to “One First,” an (increasingly frequent) newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Saturday brought with it a whole bunch of news about the Alien Enemy Act of 1798—a statute I wrote about back in October (and, at more length, in a 2007 law review essay). In a nutshell, President Trump signed a long-anticipated proclamation purporting to invoke the Alien Enemy Act against Tren de Aragua, a transnational gang with deep roots in Venezuela. Meanwhile, in a lawsuit filed by the ACLU and Democracy Forward in Washington, D.C., Chief Judge James Boasberg issued a temporary restraining order—first against use of the Alien Enemies Act to remove five named plaintiffs potentially being held under the Act; and, by the end of a multi-hour hearing Saturday afternoon, against use of the statute to remove from the United States just about anyone being held under the 1798 statute. The government has already noticed an appeal of both orders to the D.C. Circuit (where they have been consolidated), and has asked for an emergency stay pending those appeals, so things on the litigation front may continue to move … quickly, including, perhaps as soon as this week, to the Supreme Court.

Because the United States hasn’t used the Alien Enemy Act since World War II, there’s a fair amount of misunderstanding out there about what the Act authorizes, when it can be invoked, and what’s supposed to happen even when the statute applies. And as in the Khalil case, there are also tricky questions about where litigation challenging the government’s conduct should be brought. In the post that follows, I take a quick stab at five of the biggest questions raised by these events.

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First, what exactly is the Alien Enemies Act, and what is the basis for invoking it here?

As J. Gregory Sidak has written, “The Alien Enemy Act was enacted on July 6, 1798, eleven days after Congress enacted the notorious Alien Act and eight days before it enacted the even more infamous Sedition Act.” Passed during the “quasi-war” with France, the Act was meant to give the President broad authority over potential spies and saboteurs at home during a conflict overseas. Specifically, the significant grant of power came in section 1, codified today at 50 U.S.C. § 21:

[W]henever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, . . . all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.

The obvious limiting language here is that the authority conferred by the act is meant to be confined to a time of declared war, or any “invasion or predatory incursion . . . by any foreign nation or government.” Enacted at a time when Congress was out of session more than it was in session, it made sense for the legislature to allow for the possibility that the United States might have been invaded (by England, say), and yet an out-of-session Congress wouldn’t have yet had the opportunity to declare war. Indeed, the only invocations of the statute, prior to Friday, had come during the United States’ three biggest declared wars—the War of 1812; the First World War; and the Second World War.

Obviously, the United States is not currently at war with any country—including Venezuela. In his Proclamation, Trump tried to get around this rather glaring defect by referring to Tren de Aragua (TdA) as part of a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.” (The government’s brief on appeal claims, “TdA also operates as a de facto government in the areas in which it is operating.”) Thus, the executive order invokes the Alien Enemy Act as a basis for arresting, detaining, and removing “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States.” In other words, the statute hasn’t been invoked against all Venezuelans in the United States, but only against those who are (1) “members” of TdA ; and (2) neither U.S. citizens nor green card holders (we’ll come back to what membership in TdA means). That might change, of course, especially with DOJ arguing that “TdA [has] become[] indistinguishable from Venezuela.” But at least for the moment, the scope of the group over whom the government is claiming this authority is rather circumscribed.

Without downplaying the threat that multinational gangs like TdA pose to the United States, it should still be clear that this argument is nonsense. Whatever else might be said about TdA, it is not a “foreign nation or government,” and there is no “foreign nation or government” that is currently undertaking an “invasion or predatory incursion” against the United States. DOJ tries to split the difference by suggesting that TdA is acting at the direction of the “Maduro regime,” but it never actually makes the argument that would have to follow to make the statute even arguably applicable—that the Venezuelan government is responsible for the “invasion or predatory incursion.” The Alien Enemy Act is specific on this point, and TdA just doesn’t fit the bill.

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Second, if the statute so obviously doesn’t apply, why is the Trump administration invoking it?

Even though the plain text of the Alien Enemy Act and common sense both militate against the conclusion that the United States is under an “invasion or predatory incursion” from a “foreign nation or government,” Trump’s proclamation asserts, repeatedly, that Trump himself has determined that we are. One argument that the Justice Department is thus already making is that the President’s determinations in this regard are conclusive—and are not subject to judicial review. (The government’s appellate brief puts forward the regrettable argument that one acceptable definition of invasion is “the arrival somewhere of people or things who are not wanted there”—a ludicrously low bar).

The best support for this argument is the Supreme Court’s only decision analyzing the Alien Enemy Act—its 1948 ruling in Ludecke v. Watkins. There, a group of Germans being detained in the United States under the auspices of the Act brought suit, claiming that, because the war in Europe had ended (and, indeed, Germany as a sovereign nation had ceased to exist), the detention authority conferred by the Act had expired. For a 5-4 majority, Justice Frankfurter rejected that argument. In Frankfurter’s words,

It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come.

So the detentions could continue. (Indeed, from the perspective of the political branches, the war against Germany would not formally end until October 19, 1951.) Thus, the argument goes, President Trump’s determination that we are under invasion from the “hybrid criminal state” TdA represents ought to receive similar deference—if not be categorically unreviewable under the “political question” doctrine. (Nevermind that in that very case, the initial existence of a state of armed conflict was determined by Congress, not the President.)

The government might also point to the Supreme Court’s more recent decision in Zivotofsky v. Kerry, which held that the President has the exclusive constitutional power to recognize foreign countries. There, the question was whether Congress could override consecutive presidents’ determinations that Jerusalem was not part of Israel (the Court said no). Here, it wouldn’t surprise me if Trump were to argue that he has the unreviewable power to proclaim that TdA is, in fact, Venezuela (and Venezuela is TdA).

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Third, how viable is this deference/political question argument?

The problem for the government’s deference argument is that it is belied by a lot of (lower-court) case law. The text of the Act itself explicitly suggests that judicial review is available to consider whether an alleged “enemy alien” actually falls within the Act’s purview. As clarified by Justice Bushrod Washington on circuit in the landmark early case of Lockington v. Smith (1817), a court order was not a prerequisite to the executive detention of an alien enemy. But the exercise of judicial review was still robust. (There’s also a significant War of 1812-era ruling on circuit by Chief Justice Marshall, which was unearthed in the 2000s by Gerry Neuman and Charles Hobson, and which, among other things, also stresses the significance of judicial review under the statute.)

To that end, there are a number of reported cases during World War I and during the run up to World War II in which the pattern of judicial review that emerged was focused on whether the individual in question fell within the statute’s definitional scope—i.e., whether they were “natives, citizens, denizens, or subjects of” a country against which Congress had declared war. If the answer was yes, the courts typically held there was little more for them to do. But there was robust review of what might be viewed as the “jurisdictional” facts—of what country the detainee was affiliated with, and whether Congress had declared war against that country.

Indeed, as courts were confronted with hundreds of cases during the Second World War, their review focused extensively on the applicability of the jurisdictional facts, including whether the detainee was connected to a country against which the United States had declared war, and exactly when they were so connected (and when they were arrested). Again and again, lower courts, at least, took a narrow and formalistic approach to when (and to whom) the statute could apply even if they accepted that their role was limited in cases in which the statute’s applicability was clear.

Ludecke isn’t inconsistent with those cases. The detainees before the Supreme Court conceded that they were German; and they conceded that Congress had declared war on Germany. Their argument was only that the war (the statutory condition for their detention) had ended. For the Supreme Court to conclude that this was a particular issue on which it would defer to the political branches did nothing to upend the idea that the statute’s limits were otherwise judicially enforceable. (I wrote about Ludecke in much more depth back in 2006.) Thus, even if the President is entitled to a modicum of deference, it should follow from the judicial precedents arising out of the War of 1812, World War I, and World War II that federal courts can provide meaningful judicial review of whether the statutory condition predicate—an “invasion or predatory incursion” by “a foreign nation or government”—has occurred. (Readers may also be interested in George Mason law professor Ilya Somin’s analysis of the scope of the “political question” doctrine in cases about incursions.)

Outside of the Alien Enemy Act context, the modern Supreme Court has also shown less willingness to categorically defer to the executive branch with regard to the existence of hostilities. Thus, even as the Court in Hamdi v. Rumsfeld blessed the military detention as an “enemy combatant” of a U.S. citizen captured in Afghanistan, Justice O’Connor’s plurality opinion noted that this was based on the Court’s assessment of what was true on the ground, not merely the executive branch’s assertions. In her words, “If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of ‘necessary and appropriate force,’ and therefore are authorized by the [2001 Authorization for the Use of Military Force].” In short, there is a lot of support for the proposition that courts can and should meaningfully scrutinize the President’s assertions about TdA. Even Zivotofsky, which suggests that the President has conclusive power to recognize foreign nations, is fairly read to be focused more on how to resolve a disagreement between Congress and the executive branch (a separation of powers dispute) than on the President’s power to recognize, say, a private company or a remote, uninhabited island as a foreign sovereign. There has to be some factual basis for the President’s assertions, and those facts are, and ought to be, subject to judicial review.

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Fourth, what if a court nevertheless defers to the government’s claim that we are being invaded by TdA?

In any event, and as noted above, Trump’s proclamation does not apply to all Venezuelan nationals in the United States. Rather, it applies only to those who are 14 or older; who are neither naturalized citizens of the United States nor lawful permanent residents; and who are “members” of TdA. Critically, the executive order does nothing to define what it means to be a “member” of TdA. If anything, this invites even more of a judicial role than was the norm during prior invocations of the Alien Enemy Act.

Consider, in this respect, the Guantánamo habeas cases of the late 2000s and early 2010s. After the Supreme Court held that federal courts had to be able to hear those suits, there was a remarkably rich body of case law that emerged respecting both the substantive criteria and procedural rules by which the government had to prove that individual detainees were “part of” al Qaeda and its associated forces—and thus subject to long-term military detention as “enemy combatants.” There’s quite a lot to say about the rules upon which the D.C. district courts and D.C. Circuit ultimately seized (much of which has been said by me). What can’t be denied is that the need to define and police “membership” in a transnational organization as a basis for detention authority provoked a robust judicial response—where the courts provided far more than cursory judicial review, and held the government to a meaningful evidentiary and legal burden, even if commentators like me thought the burdens should’ve been even higher. Strikingly, all of those cases came in a context in which the detainees had less of a settled entitlement to constitutional protections, including due process, than anyone who would be at issue here—for the simple reason that none of the Guantánamo detainees had ever set foot in the United States. Here, in contrast, the authority is being involved against individuals already on U.S. soil.

That may be the most important point here: Even if courts buy, or at least defer to, the transparently cynical argument by the Trump administration that what TdA is doing constitutes an “invasion or predatory incursion” by “a foreign nation or government,” the U.S. government still bears the burden of persuading courts that individual detainees are members of TdA. That’s going to require case-by-case judicial review; and, as ended up happening in the Guantánamo cases, the government is going to lose many of those cases (perhaps even more of these). All of this goes to why, the way the proclamation is written, it is hard to see how the Alien Enemy Act becomes a meaningful tool for removing large numbers of individuals from the United States. Even if the statute applies to TdA (it doesn’t), it contemplates a meaningful role for the courts in deciding whether the statute applies to individual detainees—a role courts have played during prior wars even when there was no question that the statute had been properly invoked in the first place.

Indeed, one can envision other alleged abuses of the Alien Enemy Act that may give rise to valid lawsuits. One illustrative case from World War II is United States ex rel. von Heymann v. Watkins, in which the Second Circuit held that, even though the detainee at issue was a German national subject to the statute, the government could not use the Act solely for the purpose of detention. Rather, that detention had to be for the purposes of removal. Likewise, although von Heymann had been arrested in Costa Rica and brought to the United States, the Second Circuit suggested that the Act would be inapplicable if the initial arrest had itself been unlawful.

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Fifth, okay, but in which courts will this review take place?

As in the Khalil case, the question of which court is the appropriate one to bring these cases is also likely to be a major issue. Saturday’s rulings by Judge Boasberg came in a case brought in Washington, D.C., on behalf of a handful of Venezuelan nationals who, by all accounts, were being detained by U.S. immigration authorities in Texas. As I noted in the context of the Khalil case, the Supreme Court in 2004 held that federal detainees challenging their detention have to name their “immediate custodian” as the respondent, and bring a lawsuit challenging their detention in a district in which that person (and not the federal government, generally) is subject to jurisdiction.

But as I pointed out in my post about Khalil, that 2004 Supreme Court ruling expressly reserved whether the same “immediate custodian” rule applies to immigration cases. And unlike the typical immigration case (in which a non-citizen is seeking to challenge a final order of removal and usually does so in their regional court of appeals), here, the detainees are challenging something else—a process for their removal that is unrelated to the rules governing ordinary immigration cases, and an argument not that they should be released, but that they can’t be removed without ordinary immigration process. Thus, they have at least a non-frivolous argument that they can seek judicial review by means other than habeas petitions—and that, even if they have to use habeas as the vehicle, the immediate custodian rule shouldn’t apply. And even if one of the plaintiffs nevertheless does have to be within the D.C. district court’s jurisdiction for the court to be able to proceed, the fact that plaintiffs are seeking certification of a nationwide class (which Chief Judge Boasberg has temporarily approved) might also give rise to an argument that at least some of the class members are properly bringing suit in D.C.

Candidly, I’m not sure that any of those arguments are going to prevail, so it’s entirely possible that these cases end up in Texas (and, thus, the Fifth Circuit). If anything, though, that’s why the membership issue is so significant. Even if the Fifth Circuit might be more sympathetic to the invasion/predatory incursion argument than any other court in the country (including the Supreme Court), the government will still bear the burden of establishing each individual detainee’s membership in TdA in places those detainees are held (e.g., a Bronx detainee in the Southern District of New York). And if the Guantánamo cases teach any lesson on this very specific point, it’s that having individual cases turn on such a showing can bog things down in a hurry.

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I don’t mean to bury the lede; President Trump’s proclamation turns the Alien Enemy Act on its head. And, if left unchecked, it would set an extraordinarily dangerous precedent for using self-serving and counterfactual assertions by the President as a basis for short-circuiting the ordinary processes the law requires before non-citizens can be arrested, detained, and removed from the United States (and have their property seized).

But the Alien Enemy Act itself, and over two centuries of case law interpreting it, make clear just how many checks are built into the statute—not because the statute isn’t such a broad and sweeping grant of authority, but entirely because it is. Yet again, the Trump administration has seized upon a policy initiative that sounds ominous to those less familiar with these details; that will terrify especially those in vulnerable immigrant communities; and that might even lead to the removal of a small number of individuals outside of our normal immigration processes. But so long as courts follow the examples of their predecessors, we may well look back on this episode as a heck of a lot more flash than substance. It won’t be the last.

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