This past weekend, President Donald Trump invoked the Alien Enemies Act of 1798, a wartime authority, as a part of his mass deportation agenda. The president’s use of the law for deportations was promptly blocked by a judge who questioned the appropriateness of invoking the authority — which requires a declared war, “invasion,” or “predatory incursion” perpetrated by a “foreign nation or government.” In issuing his emergency order, however, the judge said that it was a close call on whether the challenge to the president’s invocation was ultimately likely to succeed. He noted that judges generally do not second-guess the president on sensitive “political questions” regarding the national security.
Notwithstanding the deference that judges owe the president on national security matters, the political question doctrine does not bar the courts from reviewing Trump’s invocation of the Alien Enemies Act based on a supposed “invasion” or “predatory incursion.” When the Supreme Court formalized the political question doctrine in Baker v. Carr, it was clear that the judiciary is “not at liberty to shut its eyes to an obvious mistake” and “will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power.” And before Baker v. Carr, the Court established that the judiciary can review executive actions in a supposed military emergency if those actions are not “conceived in good faith” or fall beyond the executive’s “permitted range of honest judgment.”
Trump’s invocation of the Alien Enemies Act was neither made in good faith nor made consistent with the clear demands of the law. For one, Trump proclaimed earlier this month that “The Invasion of our Country is OVER,” to celebrate a reduction in the number of border encounters. Indeed, border crossings have dropped precipitously. Trump’s resulting public boast that no invasion is occurring is, of course, at odds with his Alien Enemies Act proclamation of an invasion. It is powerful evidence that the proclamation was made in bad faith, more for the purpose of bypassing the due process protections of immigration law than for the purpose of responding to an ongoing wartime threat.
Trump’s invocation of the Alien Enemies Act is also manifestly inconsistent with its design and established meaning. Although the administration has called migration and narcotics trafficking “irregular warfare,” and proclaimed an invasion or predatory incursion accordingly, that conduct falls well short of the standard for invoking the law.
As the Fifth Congress said, as past presidents have argued, and as the Supreme Court has acknowledged, the Alien Enemies Act was enacted pursuant to Congress’s constitutional war powers as an implementation of the rules of war under the law of nations. Constitutional war powers, like the rules of war, are triggered by an armed attack by a military organization. They are not implicated any time the Secretary of State designates a new group as a foreign terrorist organization — a category that includes nearly a hundred groups around the world from Peru to the Philippines to Ireland. Nor are they implicated by civil or criminal affairs like migration and narcotics trafficking. Any suggestion to the contrary is so baseless that Richard Visek, the State Department’s Legal Adviser in the Trump and Biden administrations, told Congress he was “not aware of any statement by anyone” suggesting that this non-military activity could constitute an armed attack or use of force.
It is no surprise, then, that the Alien Enemies Act has never before been invoked in response to non-military activity. In the War of 1812 and World War I, Presidents James Madison and Woodrow Wilson invoked the law after receiving Congress’s war declaration. And on Dec. 7, 1941, President Franklin D. Roosevelt proclaimed an “invasion” and invoked the law immediately after Japan’s surprise attack on Pearl Harbor. Within a day of fending off hundreds of military aircraft and dozens of armed submarines, Roosevelt requested and received a war declaration from Congress, entering the nation into World War II. The contrast between those circumstances and the circumstances underlying Trump’s proclamation could not be more stark.
The courts would not be venturing into uncharted territory by distinguishing civilian from military affairs, fact from fiction. For decades, courts have resolved whether circumstances amount to acts of war for the purpose of applying “war exclusion” clauses in insurance contracts. In a 1974 case involving a plane hijacking by the Popular Front for the Liberation of Palestine, a designated foreign terrorist organization, the Second Circuit Court of Appeals held that the seizure of the aircraft was not a “warlike act” because the hijacking “had criminal rather than military overtones” and was conducted by “agents of a radical political group, rather than a sovereign government.” The Court had no difficulty applying these relevant standards, and it made no mention of the political question doctrine.
Even in higher-stakes cases, where executive power is directly challenged by individuals, the courts have alluded to or exercised their authority to police extreme abuse. Crockett v. Reagan is best known for dismissing a War Powers Resolution case regarding President Ronald Reagan’s secret deployment of military advisers to El Salvador during that nation’s civil war — but the judge, even while relying on the political question doctrine to dismiss the case, noted that it “would be absurd” to say that a larger-scale conflict could not be reviewed and reined in by the courts. A similar sentiment prevailed in Sterling v. Constantin, in which the Supreme Court struck down a governor’s declaration of martial law despite acknowledging his “broad discretion” as “chief executive and Commander in chief of [the state’s] military forces.” Critically, the Court observed that there was “never any actual riot, tumult, or insurrection” beyond the capabilities of civilian law enforcement.
To be sure, the courts have rarely been thrust into circumstances in which second-guessing the president on sensitive foreign policy or national security matters is appropriate. But as Baker v. Carr warns, the courts’ “deference rests on reason, not habit.” And in cases in which individual liberties are at stake, as they are with Trump’s invocation of the Alien Enemies Act for mass deportations, the Supreme Court has promised not to give the political branches a blank check even when the nation is at war.
In a 2022 opinion, Justice Neil Gorsuch wrote about the president’s ability to “misuse claims of national security to shroud major abuses.” He urged his colleagues that “[t]here comes a point where we should not be ignorant as judges of what we know to be true as citizens”; sometimes the judiciary cannot accept the president’s declarations at face value. Although he was dissenting from the Court’s holding in that particular case, the broader principle Gorsuch articulated is both valid and essential. Many of the emergency powers a president could unlock through pretextual invocations and arbitrary proclamations are sweeping and injurious to a free, fair, and democratic society. Nowhere is this clearer than with Trump’s peacetime invocation of the Alien Enemies Act — a wartime law last used to intern 31,000 noncitizens without due process. The courts can and must serve as a check against abuse.
Editor’s note: This piece is part of the Collection: Just Security’s Coverage of the Trump Administration’s Executive Actions