Trump Appointed Judge: No You Can’t Use Alien Enemies Act To Rendition Venezuelans

Well look who else thinks Trump’s plan to use a centuries-old law to vanish people to El Salvador is batshit crazy: one of his own judges, Fernando Rodriguez Jr. I’m sure the admin will be out there calling him a far-left radical Marxist before long.

Let’s be clear about how absolutely unhinged this whole thing is. Using the Alien Enemies Act to rendition people to a foreign concentration camp is shameful. The law itself was part of a package of historically shameful bills from the earliest decades of the US, the Alien and Sedition Acts. Every other law from that collection of bad laws was rightly tossed in history’s garbage bin, except this one, which has been used only a few times. Even there, the short history of its usage is embarrassing to the US as well: the last time it was used was to inter Japanese Americans during WWII. You know, that thing we now recognize as a shameful event in American history.

The courts have been looking at this nonsense and going “wtf are you doing?” Because here’s the thing: this law can only be used when we’re either at war or facing an invasion from a “foreign nation or government.” Last time I checked, Congress hasn’t declared war (yeah, that’s still their job, even if the entire country has been pretending otherwise for decades) and — shocking revelation here — no country has actually invaded us.

Stephen Miller’s Trump’s workaround? He just… declared by proclamation that the greatly exaggerated Venezuelan gang, Tren de Aragua (TdA), is totally working with Maduro. Evidence? Who needs evidence when you’ve got a proclamation? Certainly not this government!

Which takes us to the ruling barring the use of the AEA to remove Venezuelans. In short: the AEA requires things to happen that haven’t happened, and you can’t get around that by just having the President “declare” that it happened. That’s not to say the ruling is totally good, as there are some problematic aspects, even if it gets the larger picture correct.

The question that this lawsuit presents is whether the President can utilize a specific statute, the AEA, to detain and remove Venezuelan aliens who are members of TdA. As to that question, the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms. As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class, or to remove them from the country.

The judge walks us through the AEA’s greatest hits (spoiler alert: it’s a very short playlist, and every track is garbage), noting how it’s only ever been used during actual, official, Congress-declared wars. You know, real ones, and not just because the president had a bad morning and decided to declare war on reality to justify shipping brown people to a foreign gulag.

Without an actual declared war, the whole effort by the Trump administration hinges on a ridiculous interpretation of “invasion” or “predatory incursion” by a foreign nation or government. The judge starts out by exploring the meaning of those terms, including at the time the law was written back in the 18th century. And wouldn’t you know it? They were talking about actual military forces, not just people moving to America, trying to find a better life:

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. The usages of “predatory incursion” at times referred to entries by Native Americans into the western territories, as did usages of “incursion.” But even these records refer to an organized group of armed individuals entering an area to attack a fort, settlement, or town, and the writer typically discussed the need for a military response to the entry. In only a few sources did the use of “invasion” or “predatory incursion” reference a non-military action. 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.

Also, it turns out that the Congressional record from the 18th century makes it clear that this is also what Congress intended:

In addition, the Court located only one relevant historical record from the debates over the AEA. Representative Robert Harper moved to strike the phrase “predatory incursion” from the proposed legislation, based on his belief that the bill granted “very extensive” powers that “he did not think ought to be given except in case of serious attack.” 8 Annals of Congress 1786.

Given that, the Court sees no way that the administration can properly argue that TdA has invaded or engaged in a “predatory incursion” into the country. While it admits that TdA is obviously dangerous and a real problem, and even accepts as given (more on that in a bit) that they can be tied to the Venezuelan government, it’s still a bridge too far to say that they invaded.

Based on the plain, ordinary meaning of those terms in the late 1790’s, the Court concludes that the factual statements do not. The Proclamation makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation. Thus, the Proclamation’s language cannot be read as describing conduct that falls within the meaning of “invasion” for purposes of the AEA. As for “predatory incursion,” the Proclamation does not describe an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives. While the Proclamation references that TdA members have harmed lives in the United States and engage in crime, the Proclamation does not suggest that they have done so through an organized armed attack, or that Venezuela has threatened or attempted such an attack through TdA members. As a result, the Proclamation also falls short of describing a “predatory incursion” as that concept was understood at the time of the AEA’s enactment.

The judge basically said: “let me explain what words actually mean, since you seem confused.”

For these reasons, the Court concludes that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and, as a result, is unlawful. Respondents do not possess the lawful authority under the AEA, and based on the Proclamation, to detain Venezuelan aliens, transfer them within the United States, or remove them from the country.

So what’s the bottom line here? The administration can’t use this centuries-old law as their personal disappearing people machine — at least not for Venezuelans in the Southern District of Texas.

That said, there are still some parts of the ruling that are pretty scary, including that the judge feels that plenty of what Trump has done here is unreviewable by the courts as “political questions.” And he also makes it clear that Trump could use other laws to kick them out of the country (though, those other laws historically have more due process associated with them, which is why the admin went to the AEA in the first place).

Specifically, the court says that it can’t determine if the factual claims made in the White House’s proclamation (such as that TdA is working for Maduro and therefore an agent of the state of Venezuela) are true or not. Rather, it can only interpret the words in the statute, such as “invasion” and “predatory incursion.”

Based on the Supreme Court’s decisions regarding the AEA, as well as the principles enumerated in Baker, the Court concludes that while it may not adjudicate the veracity of the factual statements in the Proclamation, or the propriety of the steps taken by the President as to Venezuelan aliens and TdA members, the Court retains the authority to construe the AEA’s terms and determine whether the announced basis for the Proclamation properly invokes the statute.

That could create problems down the road if it remains. In part, the judge is giving the administration a roadmap to continue doing what they want to do. And it gets even worse:

Once a court defines the parameters of what conduct constitutes an “invasion” or “predatory incursion” for purposes of the AEA, the court leaves to the Executive Branch the determination of whether such conduct has been perpetrated, attempted, or threatened. For example, a court may decide that one aspect of “invasion” and “predatory incursion” requires physical entry into the United States. In other words, a court may conclude that no invasion or predatory incursion has occurred or has been threatened if the alleged conduct does not involve the entry of individuals into the country. The court having determined the meaning of these terms, it is left to the Executive Branch to determine whether a foreign nation or government has threatened or perpetrated activity that includes such an entry. As to this decision, the court may not delve into whether the Executive Branch possesses sufficient support for its conclusion, or whether the court agrees with the Executive Branch’s determinations. That analysis would require the Executive Branch to disclose to the court the domestic and foreign intelligence that undergirds the finding of an actual or threatened invasion or predatory incursion. And requiring the Executive Branch to do so would run counter to the admonition that “it is inconceivable that before an alien enemy could be removed from the territory of this country in time of war, the President should be compelled to spread upon the public record in a judicial proceeding the method by which the Government may detect enemy activity within our borders[.]”

That creates a pretty big loophole for the Trump administration to go through even with this particular decision.

So yeah, this is a win — a Trump-appointed judge looked at this legal nonsense and said “nah.” That’s huge. But don’t get too excited. The administration’s already shown they’re willing to do just about anything to justify their actions. They’re not going to let a little thing like “judicial interpretation” or “what words actually mean” stop them from trying again.

The real question isn’t whether they’ll try to get around this ruling — it’s what creative legal interpretation they’ll cook up next. This particular dumpster fire is far from out.