For the First Time, a Judge Declares Trump's Use of the Alien Enemies Act Unlawful

And as an added kick in the teeth to the government, the judge is a Trump appointee in Southern Texas

This is it, the moment we’ve all been waiting for! Is Trump’s use of the Alien Enemies Act to disappear Venezuelan nationals to a gulag in El Salvador even legal? According to Judge Fernando Rodriguez Jr. - a Trump appointee in the Southern District of Texas - the answer is no.

How did we get here? Well, the Supreme Court decided that disputes under the Alien Enemies Act must be resolves using habeas petitions in the districts where the petitioners are being detained. This is one of those cases.

The judge concluded that according to basic dictionary definitions, and historical understanding of the terms “invasion” and “predatory incursion,” the government has exceeded the scope of the Alien Enemies Act, and its use in this context is therefore unlawful.

There are a host of factors the judge considered in his 36-page ruling, but it all boils down to whether the Trump administration’s argument that it gets to define the terms of the statute is persuasive.

It’s not.

Here, the government argues that while the terms “invasion” and “predatory incursion” “include military action, . . . neither is limited to such action.” But the government can only provide two sources to back up that contention, and none of them include historic context:

[The government] contends that other contemporaneous sources reflect a broader understanding of “invasion,” with no express or implicit military requirement. In support of their construction, however, they provide only two examples, both of them from dictionaries. One authority defines “invasion” as any “hostile entrance.” 1 JOHN ASH, THE NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (1775). And A Complete Dictionary of the English Language, a source on which Petitioners also rely, includes “hostile encroachment” as a definition, with no reference to military force. See Invasion, A DICTIONARY OF THE ENGLISH LANGUAGE (1773). Respondents identify no other historical records supporting their proposed meaning of “invasion,” and they offer no sources from the nation’s founding era as to the ordinary meaning of “predatory incursion.”

So the judge did his own research on historical context and said:

[T]he Court reviewed numerous historical records using “invasion,” “predatory incursion,” and “incursion” for the period from 1780 through 1820. See Appendix A (identifying records and providing links).9 The review strongly supported the Petitioners’ position. In the significant majority of the records, the use of “invasion” and “predatory incursion” referred to an attack by military forces. This held true even when the historical record did not concern the Revolutionary War or the War of 1812.

While the Court does not represent that its review constitutes a vigorous corpus linguistics analysis, the results provide a significant level of confidence that a complete review would generate similar conclusions.

Further, the judge referenced the Constitution’s use of “invasion” - and it’s always a good call to give the Trump government a lesson on the Constitution:

The Constitution itself references “invasion” on two occasions, each time in a military context. In Article IV, Section 4, the Constitution requires the United States to “protect each of [the states] against Invasion.” At least one court has concluded that “invasion” under this provision requires “armed hostilities” and does not include mass immigration.

Also, Article I, Section 9 prohibits Congress from suspending the writ of habeas corpus, “unless when in Cases of Rebellion or Invasion the public Safety may require it.” Although courts have not had to define what constitutes an invasion supporting the suspension of the writ, the use of “Rebellion,” which refers to an armed uprising, suggests that both terms refer to a military attack, either from within or without.

In addition, the Constitution in Article I, Section 10, Clause 3 also provides that a state may not “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” This use of the related term, “invaded,” expressly concerns warfare.

These considerations coupled with the other factors weighed in the case lead to the following conclusion:

The Court has concluded that J.A.V., J.G.G., and W.G.H., in their individual capacity and as representatives of the certified class, have demonstrated entitlement to relief in habeas. Respondents have designated or will designate them as alien enemies under the Proclamation, subjecting them to unlawful detention, transfer, and removal under the AEA. As a result, J.A.V., J.G.G., and W.G.H. are each entitled to the granting of their Petition for a Writ of Habeas Corpus, and a permanent injunction prohibiting Respondents from employing the Proclamation and the AEA against them. The certified class warrants similar protection.

The Court will issue a Final Judgment with the appropriate relief. To the extent that J.A.V., J.G.G., and W.G.H., or any member of the certified class, have been detained or are detained in the future pursuant to the Immigration and Nationality Act, they have not sought and do not obtain any relief. In addition, the conclusions of the Court do not affect Respondents’ ability to continue removal proceedings or enforcement of any final orders of removal issued against J.A.V., J.G.G., and W.G.H, or against any member of the certified class, under the Immigration and Nationality Act.

So the Trump administration can consider deportation under the Immigration Nationality Act (which requires due process), but not under the Alien Enemies Act.

I expect more rulings like this in other jurisdictions, and I assume this will eventually make its way to the Supreme Court for them to decide if Trump’s use of the AEA is lawful. In the meantime, a similar case has been filed on behalf of all the men unlawfully held in El Salvador under the Alien Enemies Act proclamation. But this is the first time we’ve gotten a ruling that Trump’s proclamation is unlawful.

~AG

(REUTERS/Paul Ratje)