The Supreme Court Has Long Held That The Alien Enemies Act Gives The President Plenary Power
Several days ago, invoking the Alien Enemies Act (“AEA”), President Trump ordered that “250 Tren de Aragua members and 23 MS-13 members wanted for alleged crimes in El Salvador” be deported. The woke left, led by the Soros minions, immediately asked Judge James Boasberg of the US District Court in DC to stop it—and amazingly, he agreed via minimalist “minute orders.” Boasberg ignored Trump’s findings and ordered that the planes carrying the deportees (already en route to El Salvador) return to the US. This grotesquely wrong decision justifies impeachment.
The AEA is one of our nation’s oldest statutes, enacted in 1798, 11 years after America’s founding. Many of the same men who drafted the Constitution later drafted and approved the Act. It provides:
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated… against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government…who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies… (Emphasis added.)
The left insists the Act can only be invoked in wartime and is subject to judicial review. The Supreme Court has already held that the left is wrong on both claims.
In 1814, the Supreme Court decided Brown v. United States, which examined whether Congress, merely by declaring war (in this case, the War of 1812), simultaneously gave ordinary American citizens the right to seize enemy aliens’ property on American soil. The Court, with the early Americans’ tremendous respect for property rights, concluded that it did not, for a congressional declaration of war only makes official a state of hostility between two nations.
On the way to this conclusion, the Supreme Court enunciated an important principle that has never been challenged: While an individual alien enemy’s property is not automatically up for grabs, the AEA sets a very different standard for the executive’s control of an alien enemy’s person:
The act concerning alien enemies, which confers on the President very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war.
In other words, Congress conferred on the president a unique power entirely separate from war itself.
In 1948’s Ludecke v. Watkins, the Supreme Court affirmed and expanded upon this interpretation of the Act. The plaintiff, a German citizen, was arrested before the U.S. declared war on Germany, held for the war’s duration, and then ordered deported two months after Germany’s surrender under an order President Truman issued using his powers under the Act.
The Ludecke Court understood something Judge Boasberg missed: In light of the Brown decision, the federal courts have no authority to second guess the president’s decision under the AEA:
As Congress explicitly recognized in the recent Administrative Procedure Act, some statutes “preclude judicial review.” [Citation.] Barring questions of interpretation and constitutionality, the Alien Enemies Act of 1798 is such a statute. Its terms, purpose, and construction leave no doubt. The language employed by the Fifth Congress could hardly be made clearer, or be rendered doubtful, by the incomplete and not always dependable accounts we have of debates in the early years of Congress. [Fn. omitted.] That such was the scope of the Act is established by controlling contemporaneous construction. “The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons,” Marshall, C.J., in Brown v. United States… “appears to me to be as unlimited as the legislature could make it.”
Moreover, said the Ludecke court, decisions virtually contemporaneous with the act itself held that the president’s power could not come under judicial scrutiny:
[The Act] “appears to me to be as unlimited as the legislature could make it.” Washington, J., in Lockington v. Smith [citation]. The very nature of the President’s power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. [Fn. omitted.] This view was expressed by Mr. Justice Iredell shortly after the Act was passed, Case of Fries [citation], and every judge before whom the question has since come has held that the statute barred judicial review.
The Ludecke court added that, while these old decisions are helpful, they’re unnecessary: “We would so read the Act if it came before us without the impressive gloss of history.”
Nor is there any need for a shooting war to trigger the president’s power. As to any matters involving a threat to the U.S., the Court concluded, “These are matters of political judgments for which judges have neither technical competence nor official responsibility.”
The Court also summarily rejected the dissent’s claim that the Act violated Ludecke’s right to a hearing, holding that the Act’s validity was so unquestionable that any challenge was wrongful judicial politicking:
The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.
Then, quoting Case of Fries (decided one year after the Act’s passage), the Court issued a warning that the anti-Trump judges would be wise to heed:
Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined. In relation to the distribution of constitutional powers among the three branches of the Government, the optimistic Eighteenth Century language of Mr. Justice Iredell, speaking of this very Act, is still pertinent:
“All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people.”
With those principles in mind, the Ludecke Court concluded that the Enemy Alien Act vests in the president the sole power to decide whether enemy aliens should be deported:
Accordingly, we hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it — on the President of the United States. The Founders, in their wisdom, made him not only the Commander in Chief, but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war. Such a page of history is worth more than a volume of rhetoric.
In sum, no federal court, from a district court to the Supreme Court, can interfere with the president’s decisions about deporting enemy aliens.
For Judge Boasberg to interfere with the president’s decision to deport Tren de Aragua and MS13 members is outrageous and creates a true constitutional crisis. Boasberg does not belong on the bench, and the House should seriously consider Congressman Brandon Gill’s Articles of Impeachment against him.
Tren de Aragua deportees arrive at an El Salvador prison. X screen grab.
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