The Alien Enemies Act and Trump's Power Struggle With Courts
Hazardous new moves in and out of court
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On Saturday Judge James E. Boasberg (D.D.C.) issued a temporary restraining order (TRO) blocking the government from removing alleged members of the Venezuelan terrorist organization Tren de Aragua (TdA) to El Salvador pursuant to Saturday’s presidential proclamation under the Alien Enemies Act (AEA). The government removed hundreds of TdA members nonetheless. Judge Boasberg held a hearing yesterday to ascertain facts so that he could determine if the administration defied his order, and today both the president and the Chief Justice weighed in.
Below are thoughts, in light of these events, about where we are in the dangerous power struggle between the Trump administration and the federal judiciary that is being waged at the judicial level but also quite aggressively at the political level.
The Alien Enemies Act Issue on the Merits Is Not Simple
I begin with a sketch of the legal merits of the AEA issue.
The AEA provides (with emphasis added): “Whenever … any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government” who are at least 14 years old, unnaturalized, and within the United States “shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”
The statute further authorizes the president “to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom.” And it makes clear that the president is “authorized” when the statutory criteria are satisfied “to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable,” as well as “the manner and degree of the restraint to which they shall be subject and in what cases.”
This is a very broadly worded authorization to the president in an area of the president’s core constitutional power. The fact that the statute is “obscure” or old is irrelevant to the authority it confers. In the context of the TdA matter it raises at least three legal issues.
First, is TdA perpetrating, attempting, or threatening an invasion or predatory incursion against the territory of the United States within the meaning of the AEA? The president in the proclamation finds and declares that it is, and adds that “TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” This issue will turn on the facts and the meaning of “invasion or predatory incursion,” but the “predatory incursion” criterion could be satisfied based on TdA’s damaging and persistent criminal activities inside the United States.
Second, and hardest for the government, is whether the incursion (if it is that) “is perpetrated, attempted, or threatened against the territory of the United States by [a] foreign nation or government.” The proclamation states that TdA “is closely aligned with, and indeed has infiltrated,” the “regime” of Venezuela’s president, Nicolás Maduro, and is part of a “hybrid criminal state,” whatever that means. A brief on appeal says that TdA is so “intertwined” in “Venezuela’s state structures,” that it is “a de facto arm of the Maduro regime.” It adds, as an “independent rationale,” that TdA is “a de facto government in the areas in which it is operating.”
I do not think one can know for sure at this stage how this issue should be resolved. The administration's factual basis for its claims have been thin. Yet there are many contexts in domestic and international law where “private” individuals or organizations are deemed to be an arm of the government or state, and the president has the exclusive power to recognize states or governments. The test for whether an action is “by [a] foreign nation or government” under the AEA is, I believe, one of first impression, and will depend on the proper legal framework (there are a few possibilities), and more factual development.
The third issue, also complex, is the scope of judicial review. This is the issue that gave Judge Boasberg most pause in the Saturday hearing. The president ordinarily gets significant deference in national security contexts, especially ones related to deportation. And the Supreme Court in 1948 in Ludecke v. Watkins ruled in the context of a wartime AEA removal that the AEA precludes judicial review of at least some AEA-related presidential determinations. But as Judge Boasberg pointed out, Ludecke in footnote 17 stated that some elements of AEA removal—“whether the person restrained is in fact an alien enemy fourteen years of age or older”—are subject to judicial review. It did not bar all judicial scrutiny of presidential AEA findings.
Some national security statutes provide for presidential interpretive discretion. The 2001 Authorization for the Use of Military Force (AUMF) says that the president “determines” one element of the law’s scope, and the Insurrection Act turns in part on “[w]henever the President considers” certain criteria to be triggered. The AEA contains no express delegation of interpretive power to the president. Moreover, the government acknowledges that habeas is a proper context for AEA removals. Yet Boumediene v. Bush, decided long after Ludecke, itself a habeas case, placed novel constitutional constraints on Congress’s ability to limit habeas review of executive detentions. That makes it hard for the government to argue against judicial review under the AEA, at least in a properly filed habeas case.
Nothing in the above analysis speaks one way or the other to the validity of Judge Boasberg’s TRO. He described it as “status quo”-preserving, and it turned primarily on the non-merits irreparable harm to the plaintiffs and the balance of the equities, both assessed at a very early stage. The government has filed a full-throated motion to vacate the TRO in the court of appeals, which will sort the matter out. My point for now is simply that, as Judge Boasberg said on Saturday, the issues on the merits (including the scope of judicial review) “are not easy issues.”
Yesterday’s Hearing
The Trump administration at its highest level seems less interested in factual and legal showings under the AEA than it is in vindicating a broad view of executive authority vis a vis courts, and in achieving big political wins. In the AEA context it is pursuing a three-prong strategy.
First as for compliance, the government is playing games that verge on defiance. It has pledged in several places that it complied with the Saturday morning TRO “and did not remove any of the five individual plaintiffs” named in the TRO. That is a significant point, in my opinion. The question is whether it complied with Boasberg’s oral order on Saturday in the evening to ensure that planes with the Venezuelans subject to his order be returned to the United States.
There were apparently three planes. One, the government said, had detainees removable on grounds other than the AEA and thus were not covered by the Boasberg order. (The government gave no further details.) As for the other two, the government lawyer, Abhishek Kambli, claimed, amazingly, that he was not at liberty to talk about those flights. He did not claim that the matter was classified or that he was asserting a state secrets privilege; he just said he was not allowed to talk about them due to national security considerations.
The government’s argument for compliance was basically that (i) it was not bound by Boasberg’s oral order and (ii) by the time the court issued its written order on Saturday evening, the court had lost jurisdiction because the planes were outside the United States and the matter was an exclusive presidential prerogative.
I do not know about the first issue, but the second one seems dubious. But even if these arguments were compelling, the proper course would have been to comply with the order in good faith and seek an emergency stay on the basis of these arguments and other arguments, as the government has done in parallel to its actions before Boasberg. The government’s position on compliance is all the more dubious because at both the Saturday and Monday hearings, its attorneys could not answer basic questions about what happened because the unnamed “client” had not provided the information. The government only half-heartedly showed up in the district court.
Second, the Justice Department is playing hardball with Judge Boasberg. The hardball comes in its just-discussed responses to his orders, and in its effort to cancel yesterday’s hearing and to have him removed from the case for the ludicrous reason that he used “highly unusual and improper procedures” in issuing the TRO, which is false.
Third, and relatedly, the White House is going after Boasberg viciously and making a political spectacle out of his decisions. White House Deputy Chief of Staff Stephen Miller on CNN gave 10 minutes of surely very effective political performance, dressed up occasionally with legal arguments, about how outrageous and illegitimate it was that a single federal judge was barring the president from exercising his national security responsibility to remove violent criminals. “Border czar” Tom Homan stated yesterday on Fox & Friends: “We’re not stopping. I don’t care what the judges think — I don’t care what the left thinks. We’re coming.” And then this morning Trump himself went off on Boasberg, describing him as (among other things) a “Radical Left Lunatic of a Judge, a troublemaker and agitator” who should “be IMPEACHED.”
These defiant words about Boasberg’s rulings by the president and other top officials, and not technicalities about legal compliance made by the lawyers, is what the public is hearing.
The AEA episode, which is very far from over, represents a significant ratcheting up of the administration’s practice of reading judicial orders narrowly or to be ambiguous; claiming alternate sources of authority for action; and slow-walking compliance by citing logistical and resource challenges. As Boasberg recognized yesterday, several factual and legal issues need to be resolved before determining whether the administration technically complied with his Saturday order. And the court of appeals will now consider the government’s motion to vacate Boasberg’s TRO. But no matter how these matters turn out, the administration clearly played fast and loose with Boasberg’s TRO.
The DOJ actions in court appear to be orchestrated by the “client” in the White House. And DOJ, on the theory that the president is the law, is seemingly doing what it is told, no more and no less. One proof of fealty is probably reflected in the attorney general and senior leadership taking the highly unusual step in the court of appeals of signing the emergency order request and motion to vacate with respect to Judge Boasberg’s order in the TdA case. (This is an attorney general who in the Great Hall proclaimed to “work for the greatest president in the history of our country,” and to be “proud to work at the directive of Donald Trump,” whom she and the department will “never stop fighting for.”) It is also reflected in the feckless underprepared performances by the political-appointee oral advocates before Boasberg. These lawyers have an impossible client, to be sure; but they accepted the job on the express but tricky ethical basis that their first loyalty is to Trump, and not to law or legal craft.
How Will the Supreme Court Respond?
The AEA episode to date is part of a larger pattern of administration criticism and threats against lower federal courts—by President Trump, by special government employee and Trump’s close advisor, Elon Musk, and by administration allies in Congress. And it is part of an even broader wave of government weaponization and bullying—toward Congress, the press, law firms, executive branch employees, and other avowed “enemies.”
But the administration has not yet sought to bully the Supreme Court. Trump has paid nominal respect to the Court, at least the conservatives on the Court, most recently in his DOJ speech, where he defended five of the Justices by name (not Barrett) from attacks from the left (even as he bemoaned that some might be caving to the left in the face of the attacks). The acting solicitor general has also shown the Court respect even as she has pushed the president's prerogatives hard on its emergency docket. And the White House believes the Trump program will fare well in the Court. “This is headed to the Supreme Court. And we're going to win,” a senior White House official said to Axios concerning the Venezuelan deportation matter. Stephen Miller, who might have been that source, said something very similar on CNN.
Yet the administration’s open disrespect toward and aggressive political attacks on lower court judges will surely have a negative impact on the way that some and maybe most Supreme Court Justices approach the legal issues coming to the Court. The Chief Justice in his year-end report bemoaned how “threats at all levels of the judiciary,” including by “[p]ublic officials [who] regrettably have engaged in recent attempts to intimidate judges,” harm the rule of law. He also noted that “the volume of hostile threats and communications directed at judges has more than tripled over the past decade,” and described the steps, including “bulletproof vests for public events,” that some judges must take.
And then today, in response to Trump’s attack on Judge Boasberg, the Chief Justice issued this statement: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
The Chief Justice’s statement now renders the Trump confrontation one with the entire federal judiciary, and not just the lower federal courts. Things were trending in this direction in any event, with administration-adjacent supporters harshly criticizing Justices who not on board for the Trump program, as happened last week in the seemingly coordinated angry attacks on Justice Amy Coney Barrett for her vote to deny the administration’s emergency order application in the foreign assistance case.
In his speech at the Justice Department, President Trump suggested that “it should be illegal, and it probably is illegal in some form,” to criticize federal judges. This is risible in light of what his administration and its allies have done recently. But the important point is that Trump obsessively complained about public criticism by the left pushing the Court to the left. Why not the same for the right?, he and others might be thinking.
There is only a tiny sliver of evidence thus far, and I do not want to make too much of it, but it points to the Court—or at least the controlling middle—not being cowed by the Trump administration’s posture toward the federal judiciary, even if it may dislike some of the district court moves. The Supreme Court has denied the application for emergency relief in the foreign aid case, it declined to rule on the Hampton Dellinger emergency application, and the Chief Justice took his sweet time in setting the briefing schedule for the emergency application in the birthright citizenship case.
The Trump administration does not seem worried about the possibly adverse implications of its anti-judicial actions and rhetoric on Supreme Court decisionmaking. But it does care a lot about winning, and about looking like it is winning. The Supreme Court is inclined to a broad view of presidential power. But it is also surely inclined to preserve judicial independence in the face of an administration that has been dangerously ambiguous about the lengths to which it will go—in terms of norm breaking, law violation, and court defiance—to notch wins.