En Banc Fifth Circuit Dismisses Alien Enemies Act Case as Moot

Today, the en banc US Court of Appeals for the Fifth Circuit dismissed, as moot, W.M.M. v. Trump, an important case about whether President Donald Trump’s invocation of the Alien Enemies Act of 1798 as a tool for peacetime mass deportation is legal.

The AEA allows detention and deportation of foreign citizens of relevant countries (including legal migrants, as well as illegal ones) “[w]henever 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.” Trump seeks to use the AEA to deport Venezuelans  the administration claims are members of the Tren de Aragua drug gang. Last fall, the Fifth Circuit ruled that Trump’s action is illegal because illegal migration and drug smuggling do not qualify as an “invasion” or a “predatory incursion” of the kind necessary to invoke the AEA. Later, the Fifth Circuit decided to rehear the case en banc before all 17 of the court’s judges.

Today, the en banc court dismissed the case for procedural reasons, because all three of the named plaintiffs have been deported by the government, under statutes separate from the AEA. I will not attempt to comment on the procedural issues involved here, which are best left to people with greater expertise on that topic.

At least for the moment, this leaves the key issue of Trump’s invocation of the AEA unresolved in the AEA. The dismissal of the appeal – presumably – also vacates the original Fifth Circuit panel opinion.

In my article, “Immigration is Not Invasion” (currently under submission to law reviews), I provide a comprehensive overview of the many reasons why “invasion” – as that term is used in the Constitution and the AEA – must be a military attack, illegal migration, drug smuggling, or other similar activity. I also outline there the dire implications of adopting a broad definition of invasion. Among other things, it would allow the federal government to suspend the writ of habeas corpus (and thereby detain people – including US citizens – without due process) at any time. It would also give state governments the power to “engage in war” against neighboring foreign countries at virtually any time, even without congressional authorization. Many of these issues are also covered in my  amicus brief in the case, which I coauthored on behalf of the Brennan Center, the Cato Institute, and others.

In a concurring opinion in the en banc decision, prominent conservative Judge James Ho argues that the court should have decided the case on the merits, and that it should have ruled that the president is entitled to absolute deference when he determines that an “invasion” has occurred. The absurd implications of this position came out in the en banc oral argument, when Chief Judge Jennifer Elrod asked whether the government’s position implies that the president could invoke the Alien Enemies Act in response to the “British Invasion” of rock stars like The Beatles, and Department of Justice attorney Drew Ensign had to admit the answer is “yes.”

Most of Judge Ho’s opinion simply recapitulates arguments for absolute deference that he made in various previous solo opinions. I address his arguments and others like them in great detail in Part V of my “Immigration is Not Invasion” article. He does, however, make one notable novel argument.

It’s undisputed that courts have no power to question a Congressional declaration of war. Courts may ask if Congress has declared war—but we do not look behind the declaration and ask whether we agree that there is a legitimate war at hand….

As a matter of statutory interpretation as well as separation of powers, there’s no basis for requiring courts to defer to a Congressional declaration of war, but not a Presidential proclamation of invasion.

This makes no sense. A congressional declaration of war is legally sufficient to create a state war regardless of anything that happened previously. As far as the Constitution is concerned, Congress can declare war on a foreign power without any provocation whatsoever (even though such an action might be unjust and might violate international law). By contrast, an “invasion” is an objective state of affairs that exists in the world. It is a factual prerequisite to the exercise of various constitutional and statutory emergency powers that cannot be exercised in its absence.

If the president could create an “invasion” simply by claiming that it exists, it would convert dangerous emergency powers that can only be used in extreme circumstances into  blank checks the president can invoke any time he wants. That’s contrary to the text of the AEA (which limits its use to situations where these circumstances actually exist) and to the text and original meaning of the Constitution. If the Constitution gave the president (or any other single person) the authority to wield these sweeping emergency powers anytime he feels like it, that issue would surely have been raised at the Constitutional Convention and by opponents of ratification. The same point applies to the AEA, which would surely have attracted widespread opposition if understood in that way. These points, too, are covered in much more detail in my article.

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