Federal district courts have opposed the more assertive aspects of President Trump’s immigration policy. These courts contest the administration’s hasty deportations of undocumented migrants from Venezuela with little to no due process. But at the heart of the immigration debate is a more basic constitutional issue.
If federal courts stop the deportations, they run the risk of interfering with the executive branch’s constitutional power to manage national security and international affairs. However, the judiciary has always respected presidents in their handling of national security, and this respect might be threatened if the White House pushes his claims of unilateral power too far.
Decisions made by two different federal district judges last week are bringing the president and the judiciary to a head. Judge Fernando Rodriguez of Texas ruled on May 1 that Trump was not authorized to deport Venezuelan Tren de Aragua gang members (TdA) to El Salvador under the 1798 Alien Enemies Act.
Judge Charlotte Sweeney of Colorado concurred on May 6 and prohibited the executive branch from deporting any more Venezuelans without first undergoing a court hearing. No federal court has ever reversed a president’s or Congress’s declaration that the United States has been attacked or invaded, even if these orders are only temporary.
The Trump administration’s extraordinary use of the Alien Enemies Act is also partially to blame for this executive-judicial dispute. The statute gives the president the authority to arrest and remove foreign nationals of “a hostile nation or government” with which the US has “declared war” or an “invasion or predatory incursion.” The statute had only been used in the United States during World Wars I and II and the proclaimed War of 1812.
However, on March 15, using his powers under the Act, President Trump dispatched TdA personnel to El Salvador. He declared that the gang was using “irregular warfare” tactics,s including “drug trafficking” and “mass illegal migration” into the United States to carry out an invasion or predatory incursion. TdA is “closely aligned with, and indeed has infiltrated,” the Venezuelan government, according to Trump, in order to satisfy the Act’s criterion of an invasion by a “hostile nation or government.”
According to the White House, a gang has become so powerful that it is launching an invasion or predatory incursion into the United States on behalf of a foreign government.
District judges have made the error of determining that this is a matter for the courts to decide, regardless of the difficulty of proving this to be true factually. The Constitution only allows the elected arms of government to make decisions on certain significant issues. In Marbury v. Madison, which established the authority of judicial review, Chief Justice John Marshall acknowledged that “the President is invested with certain important political powers, in the exercise of which he is to use his own discretion.”
For what he does, “he is accountable only to his country in his political character, and to his own conscience.” It is not possible to challenge his decision in court since “the subjects are political.” These problems “respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.”
The Supreme Court has come to characterize war as posing “political questions,” which are out of the purview of the judiciary. The president is appointed commander in chief of the armed forces and has executive authority under the Constitution. Congress has the authority to declare war and to assemble and finance the armed forces. The elected branches are free to execute their powers without interference from the courts.
The choices made by the elected branches on the occurrence of war or invasion have never been challenged by federal courts. For instance, the Supreme Court refused to question President Abraham Lincoln’s magnificent choice to go to war in order to prevent secession in the Prize Cases.
The Court stated that it was “to be decided by him” whether the President had the right to begin military operations against the South in the course of carrying out his duties as Commander in Chief. The Court may state that it must reserve the President’s authority to decide how to use force against “the political department of the Government to which this power was entrusted.” A federal court dismissed attempts to stop the wars in Korea, Vietnam, Kuwait, Afghanistan, and Iraq after setting this precedent.
