More on "Invasion," the Alien Enemies Act, and the Political Question Doctrine

In a previous post, I argued that Donald Trump’s plan to use the Alien Enemies Act of 1798 as a tool for peacetime mass deportation is illegal, but also noted that courts might nonetheless refuse to invalidate the plan, because they might (wrongly) conclude that the issue is a “political question” that judges are not allowed to consider. The Alien Enemies Act gives the president the power to detain and deport migrants when there “is 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.” In that event, the president can detain or remove “all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized.”

In a post at the Originalism Blog, Michael Ramsey—a leading scholar of constitutional foreign affairs law—largely agrees with my analysis. But he suggests the political question issue is more easily resolved than I thought:

I think the analysis can be more simple. The question, in my view, isn’t whether there is an invasion (which indeed might be a political question, even under the original concept of political questions), but whether it—whatever it is—is “perpetrated … by any foreign nation or government.” Since that’s clearly not the case, for the reasons Professor Somin says, a court would simply be called on to enforce the statute as written, which is comfortably within the judicial power.

Focusing on the words “foreign nation or government” could indeed be an alternative way to reject the argument that the issue here is a political question. Prof. Ramsey is absolutely right about that. But I worry that, if courts rule that the definition of “invasion” is a political question, they could say the same thing about the issues of whether the perpetrator of supposed invasion qualifies as a “nation or government” and whether that entity was in fact the true perpetrator.

The political question doctrine is, as I have previously argued, an incoherent mess; Michael Ramsey is no fan of it either. But, precisely because of the doctrine’s vagueness and incoherence, judges have a lot of discretion on how to apply it. A court wishing to use the doctrine to avoid the issues raised by the use of the Alien Enemies Act as a tool of peacetime deportation might well be able to find a way to do so. Such a ruling would be a grave error, but not one completely barred by current precedent.

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