Federal district judges have been resistant to President Trump’s more hardline immigration policies. These courts are challenging the government’s policy of swiftly deporting Venezuelan migrants without providing them with adequate due process. However, the immigration debate masks a deeper constitutional issue. If federal judges refuse to uphold the deportations, it may undermine the president’s constitutional power to manage the nation’s foreign policy and security. On the other hand, the president risks losing the respect of the judiciary for his handling of national security matters if he insists on using too much unilateral power.
Two different federal district judges’ rulings last week have brought the president and the judiciary to a head. Judge Fernando Rodriguez of Texas ruled on May 1 that Trump lacked the authority to deport members of the Tren de Aragua gang from Venezuela to El Salvador under the 1798 Alien Enemies Act. Colorado Judge Charlotte Sweeney concurred and further restrained the federal government from removing Venezuelan nationals from the US without first obtaining a judge-led hearing, on May 6. Federal courts have never yet reversed a presidential or congressional determination that an invasion or attack has occurred on the United States, even in the case of interim injunctions.
This executive-judicial dispute is partially the result of the unusual application of the Alien Enemies Act by the Trump administration. The statute grants the president the power to detain and deport foreign nationals from “a hostile nation or government” when the US is at war with or has been invaded or invaded by. Prior to the declaration of war in 1812 and both World Wars, the United States had never employed the act.
However, using his power under the Act, President Trump dispatched TdA personnel to El Salvador on March 15. Using terms like “drug trafficking” and “mass illegal migration” he said the gang was engaging in “irregular warfare” to invade or invade the US. The Venezuelan government is “closely aligned with, and indeed has infiltrated,” according to Trump, who asserted that TdA meets the criteria of an invasion by a “hostile nation or government.” A group has allegedly escalated to the level of a foreign state and is launching an aggressive incursion into the US, according to the White House’s astounding assertion.
District judges have erred in thinking this is a matter for the courts to decide, notwithstanding the difficulty of proving this to be true factually. The Constitution explicitly states that the elected branches of government are the only ones with the authority to decide on certain crucial matters. In the landmark case of 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.” When it comes to his choices, “he is accountable only to his country in his political character, and to his own conscience.” You can’t challenge his choice in court because “the subjects are political.” The following problems “respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.”
Conflicts like these, which the Supreme Court has dubbed “political questions,” are outside the purview of the courts. The president is both head of state and commander in chief of the military according to the Constitution. The authority to declare war and recruit and finance the military forces rests with Congress. When it comes to the use of these powers, the courts have no say whatsoever.
Regarding the determination of whether a war or invasion has taken place, the judgments of the elected branches have never been challenged by federal courts. The Supreme Court, in the Prize Cases, for instance, would not have questioned the wisdom of President Abraham Lincoln’s magnificent choice to use military force to halt secession. According to the Court’s declaration, “whether the President in fulfilling his duties as Commander in Chief” had the right to start military operations against the South was “to be decided by him.” This authority was committed to “the political department of the Government,” and the Court might rule that the President should be the one to decide how much force to deploy. Federal judges followed this precedent when they denied requests to end the conflicts in Iraq, Afghanistan, Vietnam, Kuwait, and Korea.
Federal courts, however, have reversed the judiciary’s discretion on war in the Texan and Coloradoan instances. They denied President Trump’s assertion that TdA was an armed wing of Venezuela’s invasion of the US. Prompt review by the federal appeals courts, leading to a final review by the Supreme Court, is essential. They need to admit that the pretrial judges aren’t up to the task of reviewing the classified documents and rulings that are required for the most serious matters of national security. The formal procedures of pleading, evidence, and discussion make courts great at settling disputes and cases. In the realm of national security, they lack the expertise to assess risks and possibilities.
