Jack Goldsmith on the "Not Simple" Merits Issue Before Judge Boasberg

In trying to understand the many constitutional issues raised by Trump 2.0, I have found Jack Goldsmith to be a particularly informed guide.  Jack’s substack, Executive Functions, has become essential reading.  Jack has a wide-ranging post today on the case before Judge Boasberg that has been so much in the news lately. Although the public attention on the case has covered a lot of different ground, I thought it worth flagging Jack’s overview of the legal merits of how the Alien Enemies Act does—or doesn’t—apply. Jack’s take: On the merits, the issue is “not so simple.”

The AEA provides (with emphasis added): “Whenever … any invasion or predatory incursion is perpetrated, attempted, or threatened 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 are at least 14 years old, unnaturalized, and within the United States “shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”

The statute further authorizes the president “to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom.” And it makes clear that the president is “authorized” when the statutory criteria are satisfied “to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable,” as well as “the manner and degree of the restraint to which they shall be subject and in what cases.”

This is a very broadly worded authorization to the president in an area of the president’s core constitutional power. The fact that the statute is “obscure” or old is irrelevant to the authority it confers. In the context of the TdA matter it raises at least three legal issues.

First, is TdA perpetrating, attempting, or threatening an invasion or predatory incursion against the territory of the United States within the meaning of the AEA? The president in the proclamation finds and declares that it is, and adds that “TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” This issue will turn on the facts and the meaning of “invasion or predatory incursion,” but the “predatory incursion” criterion could be satisfied based on TdA’s damaging and persistent criminal activities inside the United States.

Second, and hardest for the government, is whether the incursion (if it is that) “is perpetrated, attempted, or threatened against the territory of the United States by [a] foreign nation or government.” The proclamation states that TdA “is closely aligned with, and indeed has infiltrated,” the “regime” of Venezuela’s president, Nicolás Maduro, and is part of a “hybrid criminal state,” whatever that means. A brief on appeal says that TdA is so “intertwined” in “Venezuela’s state structures,” that it is “a de facto arm of the Maduro regime.” It adds, as an “independent rationale,” that TdA is “a de facto government in the areas in which it is operating.”

I do not think one can know for sure at this stage how this issue should be resolved. The administration’s factual basis for its claims have been thin. Yet there are many contexts in domestic and international law where “private” individuals or organizations are deemed to be an arm of the government or state, and the president has the exclusive power to recognize states or governments. The test for whether an action is “by [a] foreign nation or government” under the AEA is, I believe, one of first impression, and will depend on the proper legal framework (there are a few possibilities), and more factual development.

The third issue, also complex, is the scope of judicial review. This is the issue that gave Judge Boasberg most pause in the Saturday hearing. The president ordinarily gets significant deference in national security contexts, especially ones related to deportation. And the Supreme Court in 1948 in Ludecke v. Watkins ruled in the context of a wartime AEA removal that the AEA precludes judicial review of at least some AEA-related presidential determinations. But as Judge Boasberg pointed out, Ludecke in footnote 17 stated that some elements of AEA removal—”whether the person restrained is in fact an alien enemy fourteen years of age or older”—are subject to judicial review. It did not bar all judicial scrutiny of presidential AEA findings.

Some national security statutes provide for presidential interpretive discretion. The 2001 Authorization for the Use of Military Force (AUMF) says that the president “determines” one element of the law’s scope, and the Insurrection Act turns in part on “[w]henever the President considers” certain criteria to be triggered. The AEA contains no express delegation of interpretive power to the president. Moreover, the government acknowledges that habeas is a proper context for AEA removals. Yet Boumediene v. Bush, decided long after Ludecke, itself a habeas case, placed novel constitutional constraints on Congress’s ability to limit habeas review of executive detentions. That makes it hard for the government to argue against judicial review under the AEA, at least in a properly filed habeas case.

Nothing in the above analysis speaks one way or the other to the validity of Judge Boasberg’s TRO. He described it as “status quo”-preserving, and it turned primarily on the non-merits irreparable harm to the plaintiffs and the balance of the equities, both assessed at a very early stage. The government has filed a full-throated motion to vacate the TRO in the court of appeals, which will sort the matter out. My point for now is simply that, as Judge Boasberg said on Saturday, the issues on the merits (including the scope of judicial review) “are not easy issues.”

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