On March 15, 2025, President Donald Trump issued a proclamation titled, “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua.” In purporting to invoke the Alien Enemies Act, Trump resurrected a 1798 statute that grants the President extraordinary removal powers in times of “declared war” or “invasion or predatory incursion … against the territory of the United States by any foreign nation or government.” Specifically, this wartime power permits the President to apprehend and remove as “alien enemies” the non-U.S. citizen nationals of the foreign state, as long as they are fourteen or older. Removal is not based on danger, or evidence of a crime, or immigration status. The act thus places significant discretion in the hands of the President in times of war.
This power granted by Congress turns entirely on the predicate questions: whether there is a “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’s invocation of the Act thus raises a number of unprecedented questions, most pointedly among them: is there any merit to the Trump Administration’s claim that Tren De Aragua (TdA) and Venezuela form a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States”? And relatedly, is the TdA carrying out actions inside the United States “at the direction, clandestine or otherwise, of the Maduro regime in Venezuela”? According to the U.S. intelligence community, the answer to both of these is no. As we know, the President’s answer is yes.
The question of who gets to make the predicate determination of whether the United States is at war or facing invasion or predatory incursion is as or more important as the assessment itself. That who should involve Congress, first and foremost, as the branch constitutionally assigned decisions to go to war. But in the case at hand, I mean, do judges get to review the president’s factual assertions that the United States is at war or facing invasion or predatory incursion, or is that left entirely to the executive’s discretion? This question, so framed, has implications far beyond the AEA cases. Given just how much extraordinary power the courts have recognized for the president during times of war, this power would be all-encompassing if it is left to turn on or off by the president alone – especially if the president can declare a situation is one of war or the like with no judicial check on whether that claim is completely unfounded.
In litigation challenging deportations purportedly undertaken under the authority of the AEA, the Government has perhaps unsurprisingly argued that whether we are at war or have been invaded or subject to predatory incursion is a nonjusticiable “political question.” They have also claimed that unreviewable discretion applies to the president’s determination that TdA is acting as a foreign government. If this line of argument prevails, it would preclude judicial scrutiny entirely.
That maximalist view has not, thus far, prevailed. But some judges have conflated questions of when the political question doctrine applies with judicial deference to executive branch “national security judgments,” resulting in a mix of decisions on how much discretion they would grant the president. It is critical to clarify these questions. While decisions to go to war or how to prosecute it are political judgment calls, analysis of a statute and determination of whether it covers a given factual situation are not. These cases involve the latter. Yet by deciding that some part of this analysis is a political question, a judge is declaring their hands tied. In contrast to the political question doctrine, judges have discretion to choose how to weigh and apply deference to the executive but even here, deference should apply to the executive’s political judgments about, say, how to respond to a threat, not to whether the facts at hand meet statutory requirements.
There are three levels to the question of how much of the president’s claim to war, invasion, or predatory incursion is reviewable:
(1) The first is interpretation of the terms “invasion” and “predatory incursion” in the statute itself. The Supreme Court has long ago and again recently recognized that judges must review the AEA for “questions of interpretation and constitutionality.” Thus this question is easily dispensed with.
(2) The second is whether judges may take the next step to analyze whether the president’s factual assertions in the proclamation match the definition of invasion or predatory incursion as the judges have interpreted those terms. Every judge who has reached this stage in these cases has taken it upon themselves to determine whether the President’s claims in his proclamation suffice to meet their interpretation of the statute. Of all the judges who have reached this question, a lone district court judge (Judge Stephanie Haines) has held in a preliminary injunction order that the President’s claim meets the statute’s requirements.
(3) The final question is whether, once the president has presented factual assertions that fall within the court’s interpretation of these terms, judges may probe further to analyze and determine “whether the Executive Branch possesses sufficient [factual] support for its conclusion” (to use one judge’s terminology). Three district court judges – Judge Haines, Judge Fernando Rodriguez, and Judge Charlotte Sweeney – have thus far ruled that they may not, at least some on the basis of theories that seem to conflate political question doctrine and judicial deference. All other judges in AEA cases who have addressed the issue have maintained the role of judicial review over such matters, though they suggest the Executive’s views would be afforded “significant respect” or “requisite deference.”
Where the courts land on these questions will determine whether they accept either the president’s determination of “invasion” or “predatory incursion” or claimed factual basis for that determination on its face, without delving into whether there is any foundation for the president’s asserted power to switch on extraordinary wartime authorities.
The Bench Reacts
With only one exception, all the judges who have considered the merits of the proclamation’s claim of an “invasion” or “predatory incursion” have found that the president’s application of the AEA to Venezuala and Tren de Aragua is unsupported. But some judges have held – on grounds that appear to conflate political question and deference – that the president’s factual determinations themselves may not be reviewable.
DC District Court Chief Judge James Boasberg, the first federal judge to consider the substantive question of the President’s invocation of the AEA, directly addressed the political question argument. He noted that “simply because a legal claim implicates foreign affairs or national security … does not mean that the political-question doctrine places it beyond judicial cognizance.” To consider the question before him, Judge Boasberg turned to the landmark Supreme Court decision that addressed an AEA removal in the wake of World War II, Ludecke v. Watkins. That case involved a German national who objected to his AEA removal on the claim there was a de facto end to the war. The Supreme Court did not agree. Although it found that the actual termination of war was itself a political act, it quite pointedly did not find that the question of whether or not the United States is still at war is a nonjusticiable political question. To the contrary, as Judge Boasberg rightly clarified, the Supreme Court actually decided the question, and held “that the Act’s grant of authority remained available to the President until war with Germany was terminated by ‘treaty,’ ‘legislation,’ or ‘Presidential proclamation.’” The Ludecke Court in fact went on to note several factual circumstances that suggested the war was still ongoing, and explained that it was therefore not “compelled” to address the more “fraught” question of a war that “had in fact ended” and was “merely formally kept alive.” As Judge Boasberg observed, the Court interpreted the text of the statute, including the meaning of “declared war, defined its termination based on that construction, and decided as a factual matter whether such termination had occurred.”
Of course, in the case at hand, we do not have a “declared war” with Venezuela or – though such a thing is likely not contemplated by the statute at all – with Tren de Aragua. As for whether the predicate “invasion … against the territory of the United States by any foreign nation or government” has been met, Judge Boasberg put forward a framework for how he would consider the question on the merits, pointing to prior cases like Hamdi v. Rumsfeld where judges have determined similar war-related factual questions (internal cites removed):
In light of Ludecke and the political-question doctrine’s principles thus far explained, this Court is confident that it can — and therefore must, at the appropriate time — construe the terms “nation,” “government,” “invasion,” and “predatory incursion.” While doing so may be no light undertaking, it is a judicial one. A harder question is whether, based on those definitions, this or any court would be empowered to decide if the characteristics of Tren de Aragua qualify it as a “nation” or “government,” or if its conduct constitutes a “perpetrated, attempted, or threatened” “invasion” or “predatory incursion.” 50 U.S.C. § 21. There may be judicially discoverable and manageable criteria that would allow a court to do so. In such a scenario, the Executive’s view would not be dispositive, but it would be important: its “evaluation of the facts” and “informed judgment” would be afforded significant “respect.”
It is also worth noting a useful hypothetical Judge Boasberg put to the government’s counsel in a hearing before the court issued its opinion:
C.J. Boasberg: You would certainly agree that the hypotheticals Mr. Gelernt raises are awfully frightening, that if the courts can’t review it, then the President could say that anybody is invading the United States, that if there were — I think you cite a fishing vessel case, that if some fisherman from a foreign country comes into U.S. waters and the President says that’s an invasion, nothing — these fishing fleets, Chinese fishing fleets are an invasion of U.S. waters, any Chinese fisherman may be held and interned and deported, fair game, nothing we can do, right?
Mr. Ensign: Your Honor, there could be individualized determinations, but —
C.J. Boasberg: If they’re fishermen and if they’re Chinese, but if they are concededly Chinese fishermen, they are out of luck, right?
Mr. Ensign: I believe that’s how Congress has set this up to be, and certainly what TdA is doing to —
C.J. Boasberg: Pretty alarming. Even you, I trust, would agree such a scenario would be pretty alarming?
Mr. Ensign: Your Honor, it’s entrusted to the political branches, and to the extent that that reaches outcomes that are unacceptable as a policy in political matter, the political branches exist to resolve that. Certainly, Congress could repeal or amend the AEA at any time.
C.J. Boasberg: Okay. Thank you, all. I appreciate it.
In short, this exchange confirmed for Judge Boasberg that this hypothetical accurately reflected the government’s view: the president could allege that even a single fishing vessel was carrying out the acts that meet the definition of an “invasion” or “predatory incursion,” use that decision to then round up, detain, and remove any national of the same country, and this would be entirely unreviewable by courts.
A panel of the DC Circuit denied a stay of Boasberg’s TRO, and Judge Karen Henderson issued a concurrence directly addressing the justiciability of the Presidential Proclamation. Noting the Supreme Court’s admonition that judges should interpret the AEA and review its constitutionality, Judge Henderson recognized that the predicate for the invocation of the AEA, “conditional questions—the legal meaning of war, invasion and predatory incursion—are well within courts’ bailiwick.” Like all other judges save one who reached the question, Henderson determined that by “invasion,” the statute contemplates military action, involving foreign armies. “The term ‘invasion’ was well known to the Fifth Congress and the American public circa 1798,” she writes. “The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense.” It is not about “migration.” Same for “predatory incursion.” For the government to eventually prevail, in her view, it would have to show that “TdA has conducted an invasion or predatory incursion against the territory of the United States,” and that “TdA’s conduct is perpetrated, attempted, or threatened . . . by a[] foreign nation.” These are not, in Henderson’s view, political questions; rather they involve mixed questions of law and fact that are “appropriately left to the district court in the first instance.” On the Court’s deference, she said only, “The government will have ample opportunity to prove its case and its evidence should be afforded the requisite deference due the President’s national security judgments.”
The Supreme Court then weighed in. It vacated Judge Boasberg’s TRO on procedural grounds, finding that the plaintiffs’ cases could be brought only in habeas, in the venue where they are held in custody. In so doing, the Court cited Ludecke for the proposition that judicial review is appropriate under the AEA (and in fact that individuals are entitled to it) at least for the following purposes: 1) “as to questions of interpretation and constitutionality of the Act,” and 2) whether the “individual subject to detention and removal … is in fact an alien enemy fourteen years of age or older.” But it did not address the question as squarely as Judge Boasberg and Judge Henderson did in finding the predicate factual basis for invoking the AEA – the existence of war or invasion by a foreign nation – both judicially reviewable and not present here.
An amended complaint petitioning for habeas for those individuals who have already been removed to El Salvador is now pending before Judge Boasberg, so it remains to be seen whether he will proceed with these evidentiary questions.
In the interim, Judge Rodriguez of the Southern District of Texas issued a decision on the political question issue, finding that “the Court retains the authority to construe the AEA’s terms and determine whether the announced basis for the Proclamation properly invokes the statute.” In step with the Supreme Court rulings, he found that courts should “construe[] the meaning of “invasion,” “predatory incursion,” and “foreign nation or government.” He also found that “a Presidential declaration invoking the AEA must include sufficient factual statements or refer to other pronouncements that enable a court to determine whether the alleged conduct satisfies the conditions that support the invocation of the statute.” In other words, “The President cannot summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of the United States.”
Judge Rodriquez held that the alleged facts in the Proclamation did not satisfy the meaning of the terms in the AEA. However, he went on to state that political question doctrine demands that “it is left to the Executive Branch to determine whether a foreign nation or government has threatened or perpetrated activity that includes such an entry.” It is not clear why he views the political question doctrine as demanding such an outcome, aside from vague nods toward foreign policy and national security being the province of the political branches. And this is critical, given that premising his reticence to decide any of those matters on political question doctrine grounds would ostensibly remove such issues from courts’ power to review. However, there is no constitutional bar that Judge Rodriguez, or any judge, has located to scrutinizing the president’s claims in the Proclamation. And there is a risk that this distinction leaves room for the president to make some future factual assertions that would satisfy the definitions of terms in the AEA, based on a claim of secret intelligence assessments and analysis. Confusion over where precisely the line is drawn may be the reason for this oddly worded sentence explaining the one aspect of the Proclamation Rodriguez accepted: “the Court concludes that the Proclamation places responsibility for TdA’s actions in the United States on the Venezuelan government, which satisfies this aspect of the AEA.”
It is worth contrasting here the approach taken by Judge Henderson, who has often supported substantial deference to the executive in national security matters. Recall that in her DC Circuit concurrence, Judge Henderson stated that while the President’s “national security judgments” would be afforded “the requisite deference due” them, factual questions, including “questions of sovereignty, authority and control,” would be reviewed by the district court. Judge Alvin Hellerstein of the SDNY likewise found that interpreting the statute was well within his judicial authority and held that “the predicates for the Presidential Proclamation, that TdA has engaged in either a ‘war,’ ‘invasion’ or a ‘predatory incursion’ of the United States, do not exist.”
And Judge Charlotte Sweeney of the District of Colorado wrote that the government “assert[ed] that ‘whether the [Act’s] preconditions are satisfied’ is an unreviewable political question” – to which Judge Sweeney added a one word assessment: “Nonsense.” Of the government’s claims regarding the existence of an invasion or predatory incursion sufficient to trigger the AEA, she found them unpersuasive. But one significant caveat: like Judge Rodriguez, once the President provides a sufficient factual statement alleging that the above has occurred under the court’s analysis of those terms, Judge Sweeney “leaves to the Executive Branch the determination of whether such conduct has been perpetrated, attempted, or threatened.” (She favorably cites Judge Rodriguez’s wayward opinion for this view.)
Only one judge has thus far found the president’s invocation of the AEA lawful. Judge Haines of the Western District of Pennsylvania followed Judge Rodriguez’s reasoning that a “Presidential declaration invoking the AEA must include sufficient factual statements or refer to other pronouncements that enable a court to determine whether the alleged conduct satisfies the conditions that support the invocation of the statute,” but that the President “need not disclose all of the information that the Executive Branch possesses to support its invocation of the statute.” In other words, Presidents must make the case but then the courts are expected to trust that the president’s statement is grounded in facts they may not see. In Judge Haines’ view the courts do not have “permission … to weigh the truthfulness of factual representations within a presidential proclamation pursuant to the AEA.” She provided no explanation for why courts might require such permission, beyond noting that the Supreme Court has not explicitly directed it.
Judge Haines then departed radically from Judge Rodreguez on much of the analysis that followed. She relied heavily on the Secretary of State’s “foreign terrorist organization” designation of Tren De Aragua – a designation that has criminal and financial repercussions, but which is inapposite to the question of whether we are at war or the like with a given entity. (This is on top of the problems inherent in “blurring the lines” between criminal enterprises and terrorist organizations.) The State Department’s website lists nearly a hundred FTOs. Consider that conflation of the two could mean a president asserting the unilateral right to target and kill a member. Having conflated the two, Judge Haines crafted her own definition of a “predatory incursion” under the AEA as follows: “a hostile entry into the United States by a cohesive group of individuals, such as a military detachment or a designated Foreign Terrorist Organization, who are united by a common goal of causing significant disruption to the public safety-whether that be the safety of persons, property, or pecuniary interests-of those within the United States.” And with that definition, Judge Haines found that the proclamation complies with the requirements of the AEA. She did not discuss the political question doctrine directly, and addressed deference only in the last part of her analysis, stating that she “will afford substantial deference to the conclusions of the President” in interpreting “the phrase foreign nation or government.” On that issue, she appeared to take the same approach as Judge Rodriguez and stated, “the Court will accept as true President Trump’s conclusion, via the Proclamation, that TdA is acting ‘at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.’”
Most recently, Judge Roger Gregory of the Fourth Circuit has weighed in, adding another voice to those who have found the President’s invocation of the AEA “unsupportable.” In a case involving the removal of a Venezuelan man to El Salvador in violation of a court-enforced settlement agreement, Judge Gregory wrote a concurrence recognizing what “nearly every court to have reached the question has concluded, [that] TdA’s actions cannot constitute an invasion or predatory incursion within the ordinary meaning of the AEA’s text.” He agreed with Judge Henderson’s view that “‘invasion’ and ‘predatory incursion’ require some type of military attack, evidence for which was present in all previous instances where the AEA was invoked.” And “[t]urning to the text of President Trump’s recent Proclamation,” he stated, “I see no evidence of any kind to suggest any ‘invasion’ or ‘predatory incursion’ is afoot.”
Judge Gregory did not specify whether or how courts should review the President’s underlying facts and analysis were the President to put forward factual claims that did meet the AEA’s requirements. But he left some clues. First, he cited “the thicket of political questions surrounding whether the Maduro regime truly directs the activities of TdA, relevant to whether the supposed invasion is attributable to a ‘foreign nation or government’” (emphasis mine). This suggests he may view President Trump’s attribution of the group’s acts to the government itself as a political question, potentially in alignment with the views of Judge Rodriguez. But Judge Gregory also quite notably cited the political question doctrine case Baker v. Carr for the proposition that “even in emergency circumstances prompting political questions, a ‘court is not at liberty to shut its eyes to an obvious mistake.’” And he emphatically stated that “[t]he President cannot, by fiat, declare legal conclusions of whether there is or is not an invasion without providing underlying supportive facts.”
As for the facts at hand, Judge Gregory stated,
“[e]ven assuming the truth of any factual aspects of the Proclamation, there are no underlying facts that suggest a military attack by or on behalf of the nation of Venezuela. TdA is a brutal criminal organization, but there is nothing aside from the President’s unsupported assertion that suggests any military action within the meaning of the AEA.”
As a result, Judge Gregory stated he “would find that the AEA was illegally invoked in this case.”
The courts and Congress have given the president extraordinary powers in war. Granting him absolute discretion to decide when those powers are triggered makes them limitless.
Constitutional issues with the AEA Proclamation
The vast majority of the judges who have addressed the matter have thus far found the President’s proclamation to be an improper invocation of the AEA, and therefore unlawful. Nevertheless, alternate views may ultimately prevail, and even several judges who have ruled against the President have left him with significant discretionary room in which he may yet maneuver.
Judge Haines’ reading of the statute as covering non-military entry into the United States diverges sharply from every other judge who has thus far considered it, and seems far afield from what the terms could plausibly mean in this context. But if her interpretation were to prevail, it would raise significant constitutional questions with the AEA itself. So too would permitting the President significant discretion to manipulate his factual analysis to meet a judicial standard.
This is an issue that both Judge Haines and the other district court judges who would defer broadly to the President’s factual analysis fail to capture: the responsibility of judges to consider the constitutional issues the President’s reading of the AEA and claims to unreviewable discretion would create. “Questions of constitutionality” are listed among the matters Judge Haines cites the Supreme Court as recognizing are properly before the courts. Yet she waves the matter away, stating, “the Court may theoretically assess the constitutionality of the AEA, although that issue is well-settled in favor of the Act.”
That facile statement ignores the complication the Trump administration has introduced by seeking to apply the statute outside of a wartime context. As Judge Boasberg pointed out in his decision, the constitutional basis for the Act itself relies upon Congress’s exercise of its war powers, as conferred upon the President in the limited ways contemplated by the AEA’s text. He points to James Madison’s explanation (reflecting an understanding of the laws of war prevailing at the time): “With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies.” The Ludecke Court put it succinctly: “The war power is the war power.”
But the Ludecke Court faced the question in the context of a traditional state-to-state war declared by Congress per the explicit terms of the Constitution. Each of these facts – declared war, involving actual state militaries, among states who themselves have nationals – is precisely the scenario the statute contemplates, and is simple to ascertain in such a context. Within those clearly defined strictures, Congress granted the presidential significant discretion. Take away those strictures, and the discretion is limitless.
Today’s courts have lived through several presidential administrations asserting war powers in non-traditional settings — to fight non-state actors, to detain such actors indefinitely with no clear way to ascertain the end of the conflict in which they were apprehended, and under congressional authorizations that may never sunset and have been applied to increasingly attenuated circumstances. (I know this all too well, having served in the administrations that claimed such power.)
For their part, the courts have often ratified the president’s ability to use war powers in evolving ways, regularly looking to international law to understand the concepts of war and armed conflict. Were the President to use an AEA proclamation to remove members of, say, al Qaeda after the 9/11 attacks, that would have been an extremely novel use of the proclamation that would have raised interpretive questions about the meaning of war, invasion, and the like in the statute as well as whether it could be applied to apprehend non-state actors who are not nationals of a state that attacked the United States. And it would have raised constitutional questions about the extension of war powers authority by the President and Congress’s power to grant him this ability through the AEA.
The March AEA proclamation is something else entirely. As Judge Rodriguez found, President Trump made no claim of an armed attack, no claim of an “organized armed group” bent on attacking or plundering U.S. cities or towns, and certainly no claim of an “organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation.” In short, there is no plausible claim that the president’s own Article II powers to defend the nation from actual or imminent armed attack may be implicated in this situation. Nor could the president have made any claim of congressional authority to engage in armed conflict with Tren de Aragua, as no such thing exists.
The Constitution grants to Congress the power to declare war and the power to raise and regulate armies. Congress has ceded much of this power to the presidency, in particular through the creation and funding of a standing army. It has stood by as presidents applied a now 24-year-old authorization to use military force to armed conflicts ever more attenuated from its original purpose. And the courts have ratified or washed their hands of a vast array of powers – detention without charge, targeted killing — that turn on when the United States is facing such armed conflicts. But that array of powers is intended to be applied in extraordinary circumstances. War is supposed to be a state of exception, not the rule.
The circumstances to which President Trump now seeks to apply these powers cannot be considered war or armed conflict under any plausible meaning of these terms – and certainly not as they have ever been understood in U.S. statute, the Constitution, or international law. This is true whether or not President Trump revises and reissues his proclamation using a new framing that Judge Rodriguez suggests he might accept. Judge Rodriguez himself notes that “[a]llowing the President to unilaterally define the conditions when he may invoke the AEA, and then summarily declare that those conditions exist, would remove all limitations to the Executive Branch’s authority under the AEA.” Yet his opinion risks granting him the power to do just that. And this President has made clear that he will exploit any discretionary power the courts permit him to employ.
What Does Deference to the President Actually Mean?
How do we navigate this issue that Judge Rodriguez’s, Judge Haines’ and Judge Sweeney’s decisions raise: at what point is the President’s mere assertion that a factual basis exists for him to reach a conclusion enough? What deference is “the requisite deference due” per Judge Henderson?
Judge Haines’ favoring “substantial deference” to the President’s factual analysis is of a piece with years of judicial reticence to look too closely at what the President is doing when he claims war powers. Judges quite regularly question the competence of courts to “second guess” national security judgments the executive branch puts forward. As Judge Rodriguez states, they worry that the President’s decisions might be based on some secret intelligence or “sensitive and confidential information” they do not have, and which they should not push the President to divulge. Similarly, Judge Haines wrote, “[t]hat deference is partially due to the fact that neither members of the Supreme Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people” (citations omitted).
This supposed expertise or information gap is one basis on which courts often defer to the executive. Accountability is another. Appeals to these two concepts undergird much judicial deference, especially in the national security and foreign affairs realm where there is but sparse textual allocation of power to the president in the Constitution.
Yet while accountability and expertise both reside in the executive branch, they do not reside in the same place in the executive branch. As I’ve written elsewhere,
“whichever criterion most interests the court in choosing to defer—be it expertise, accountability, fluency in historical precedent, or role in the formation of foreign policy or international law—such choice might engage the relative competence of a different component of the executive branch. Thus, in order to defer to a particular executive capability, the courts need to understand which component’s view they are assessing.”
Yet while courts are often invested in the idea that there is some special process happening behind the closed doors of the executive, they are typically loath to delve behind it. As a result they defer aimlessly, often to what is simply the litigation position the executive branch puts forward in court. They may seem willfully blind to clear unconstitutional animus by the president because they are comforted that an internal, and secret, “review process undertaken by multiple Cabinet officials and their agencies” sufficed to remove its taint.
In the AEA cases, deferring to the President’s expertise and secret intelligence is an especially transparent legal fiction. We have seen the publicly released work of those experts and intelligence sources, and they fundamentally undermine the President’s assertions.
Moreover, not all courts have been so blindly deferential on questions of national security. Indeed, federal judges regularly adjudicate highly sensitive foreign intelligence and surveillance matters in cases before the Foreign Intelligence Surveillance Court (FISC); they review classified information using the Classified Information Procedures Act (CIPA) in a range of criminal cases; they adjudicate whether the military detention of alleged “enemy combatants” is lawful in Guantanamo Bay habeas cases relying on the government’s classified information about an ostensibly ongoing armed conflict (although they have created substantial deference standards in those cases, they do not avoid reviewing and weighing national security information), and much more. In the Guantanamo habeas cases in particular I have seen firsthand how much of the government’s initial assertions dissolve like sand through one’s fingers in the face of adversarial process and judicial review. Our nation’s history is also replete with examples of federal courts making much weightier determinations, stretching from policing the executive’s use of the limited war powers granted to it by Congress in the quasi-war with France to determining the legality of Lincoln’s blockade of southern ports at the outset of the Civil War.
Do we want judges making decisions about when and where we go to war? That is the “national security judgement” many courts today are wary of touching. (Though it would not be ahistorical for them to opine on the legality of war or military acts). But no one is asking the courts to decide when or where to go to war. They are asking the courts to interpret a statute, weigh the facts, and apply them to the law. The president’s attempt to invoke the language of war does not change that basic judicial task.
When the President exploits the concept of war, or emergency, or national security, to claim extreme power over all aspects of our lives, we should scrutinize that power with a rigorous lens. And when we are talking about basic civil liberties – and a President’s attempt to turn off constitutional due process with the flick of a pen – these questions are well within the province of the courts.
The war powers that Congress and the courts have over time granted the President are extraordinary. When the courts cede to the President absolute discretion to turn them on, this makes them virtually limitless. Today, the President claims authority to snatch people off the streets by masked federal agents and ship them to a foreign gulag, in the name of an invasion he alone has the power to name. It is almost too on the nose. This cannot possibly be a plausible exercise of the exceptional war power that the courts and Congress have long ceded to the President. But it is certainly an opportunity to rein those powers in.
