The first definitive invalidation of Trump’s use of the Alien Enemies Act
Recall that the Supreme Court ruled that Venezuelans threatened with removal under Trump’s invocation of the Alien Enemies Act had to use habeas corpus proceedings to challenge threatened deportations. Because habeas petitions must be filed in the geographic locale where detainees are held, this has led to litigation all over the country. Much of it has involved emergency motions seeking temporary restraining orders to halt deportations while the underlying legal issues are litigated. Now, for the first time, a court fully briefed on the relevant issues has ruled that the entire Trump effort to use the AEA as a basis for removing purported members of TdA is unlawful.
Judge Fernando Rodriguez of the Southern District of Texas has entered a final judgement and permanent injunction granting habeas relief to the Venezuelans detained in that District and forbidding the Trump executive from detaining, transferring, or removing them on the basis of the AEA. That's the bottom line, but understanding how Rodriguez got there is more complex.
Rodriguez, a Trump appointee to the federal bench, concluded that the ordinary meaning of the AEA does not encompass Trump's characterization of TdA activities in the U.S. as an "invasion" or "predatory incursion for the purposes of the AEA. Rodriguez relied on standard statutory interpretation to reach this conclusion, specifically the approach promulgated by Antonin Scalia and embraced by Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. Rodriguez determined that dictionaries, letters, and court opinions from the time of the AEA's enactment (1798) prove that then-ordinary meaning of invasion and predatory incursion referred only to organized, armed groups encroaching the territory of the U.S. For purposes of his legal analysis, Rodriguez accepted as true Trump's claims that TdA is a transnational criminal organization under the direction of the government of the Venezuela via its sitting president, Maduro. But, he held that these facts, even if true, are insufficient to support a finding that TdA's activities count as an invasion or predatory incursion per the AEA.
What Rodriguez was most careful to do was to delineate between the court's role as interpreter of the meaning of the AEA and the executive branch's role in making factual determinations about foreign affairs and national security. This is at the heart of the separation of powers stipulated by the Constitution. The Trump executive has argued that everything about its use of the AEA is not reviewable by courts. Rodriguez flatly rejected this. Furthermore, Rodriguez made it clear that the executive cannot simply rely on conclusory factual assertions to ground its classification of conduct as a foreign nation or government's invasion or predatory incursion under the AEA. He wrote: "[A]ny Presidential declaration ... must include sufficient factual statements or refer [to same] that enable a court to determine whether alleged conduct satisfies the conditions that support invocation of the statute." In other words, no semantic games allowed.
The Trump executive will surely appeal to the Fifth Circuit Court of Appeals, and whichever side loses there will seek Supreme Court review. The parties will fight over various steps in Rodriguez's analyses of the judiciary's role and the meaning of the AEA. Other federal district courts will rule on the validity of Trump’s use of the AEA as well as other substantive issues that will determine the fate of the Venezuelan detainees. Nevertheless, as of today, the position of one U.S. federal court is that, as a matter of law, the Trump regime may not rely on the AEA to deport Venezuelans it casts as members of TdA. This is a major inflection point in the effort to prevent Trump's efforts to make himself a military dictator.