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 expressed uncertainty about the permissible scope of review.  Judge Oldham, in particular, asked whether any Supreme Court opinion supported the authority of the courts to “countermand the president of the United States in his determination regarding armed conflict” or to second-guess a chief executive, whether the president or a governor, in his identification of “an insurrection, an invasion,” or other such events.

Petitioners’ counsel, Lee Gelernt of the ACLU, rightly responded that the Supreme Court has repeatedly and specifically said that the judiciary may evaluate whether the Alien Enemies Act is properly invoked.  Gelernt also discussed the Court’s cases regarding law-of-war detention at Guantanamo Bay, in which the judiciary has carved out for itself a role in assessing whether detainees are in fact enemy combatants.

Beyond these examples, there is another line of cases that affirms the courts’ power to overturn executive decision-making in sensitive matters of war, peace, and public safety.  That caselaw begins with Sterling v. Constantin, a 1932 case in which the Supreme Court rejected a Texas governor’s imposition of martial law.  While acknowledging that the governor had broad discretion to proclaim an “insurrection” as “chief executive officer of the state and commander in chief of its military forces,” the Court ruled that the governor’s proclamation exceeded his authority.  Because there was “never any actual riot, tumult, or insurrection” in reality, the governor’s imposition of martial law fell beyond the “permitted range of honest judgment” an executive has for carrying out his constitutional obligation to faithfully execute the law.

Since 1932, Sterling‘s “permitted range of honest judgment” rule has been applied rarely but with great consequence.  As those following the Alien Enemies Act invocation may know, the law was last used in World War II to intern 31,000 noncitizens of Japanese, German, and Italian descent.  Several months after the United States entered the war, the Alien Enemies Act was complemented and quickly overshadowed by Executive Order 9066 — the authority used to incarcerate more than 120,000 Japanese Americans, including tens of thousands of U.S. citizens, on the West Coast.  Applying the rule in Sterling, the courts prevented this second authority from being applied to German Americans on the East Coast.

In Schueller v. Drum and Ebel v. Drum, courts rejected claims of military necessity made by General Drum of Eastern Defense Command, who sought to apply Executive Order 9066 to target German Americans in Pennsylvania and Massachusetts.  The judge in Schueller observed, “The normal civilian life of the area was being pursued . . . and it could not be honestly said that ordinary law did not adequately secure public safety.”  The military could not use an exceptional wartime authority — even one signed by the president and backed by the Congress — to dislodge constitutional rights when no “exigency of war” existed in fact.

Schueller and Ebel were decided in 1943, at a time of immense concern and uncertainty regarding the national security.  They stood in stark contrast to the reflexive judicial deference on display in Korematsu v. United States, the 1944 Supreme Court case upholding Japanese incarceration on the West Coast that has since been rightly and roundly condemned as “wrong the day it was decided.” Indeed, Schueller and Ebel have since been held out by some as evidence that German Americans were treated more fairly than Japanese Americans because of racial prejudice.  But those decisions also stand out as powerful examples of the critical role that the judiciary can and should play in protecting individual civil liberties against unsupported claims of a national security threat.

There are other cases that support the authority of the courts to check “manifestly unauthorized exercises of power,” even in wartime.  Notably, Ex parte Milligan countermanded the president’s approval of the use of military commissions in Indiana, citing “judicial knowledge that in Indiana the Federal authority was always unopposed.”  We discuss Sterling, Milligan, and other relevant cases in an amicus brief filed in the Fifth Circuit on behalf of the Brennan Center, Cato Institute, and law professors Ilya Somin and John Dehn.

But Sterling, and particularly Schueller and Ebel, should weigh heavily in this case, given the Alien Enemies Act’s role in World War II internments and the breadth of the power the administration is trying to unlock through its use of the law in peacetime.  A Department of Justice memorandum on the current Alien Enemies Act invocation mentions the possibility of warrantless house raids and summary deportations that bypass protections for refugees.  When the facts are so clear, and the stakes of judicial deference are so high, the courts must exercise their independent judgment lest they sanction another mistake that will echo through our nation and legal community for generations.

I (Ilya Somin) have previously criticized Trump’s invocation of the AEA as beyond the scope of the statute in a variety of writings. See, e.g., here, here, here, and here. I have also explained why Trump’s AEA deportations violate the Due Process Clause of the Fifth Amendment.

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