American presidents, as Donald Trump is finding out to his satisfaction, have enormous freedom of action in foreign policy — much more so than in the domestic sphere. What if that foreign-policy leeway can be exploited to loosen the nettlesome domestic constraints?
It’s an age-old maneuver for adventurous rulers, and Trump is giving it a try in litigation over the Alien Enemies Act (AEA), the 1798 war-powers law he invoked last March. The gambit is worth watching because it highlights a built-in vulnerability for liberal democracies.
The AEA, dormant since World War II, gives the president extraordinary powers to detain and deport foreign nationals when the United States is at war or faces an “invasion or predatory incursion.” In activating the AEA, Trump claimed the U.S. was under attack from the Venezuelan gang Tren de Aragua. His administration then flew shackled Venezuelan nationals from Texas to a prison in El Salvador without due process, ignoring a judge’s command to stop the operation.
It was an intimidating display and an early indication of the second Trump administration’s approach to executive power. On Thursday, all of the judges on the conservative U.S. Court of Appeals for the 5th Circuit (covering Texas, Louisiana and Mississippi) will hear arguments on the legitimacy of Trump’s AEA invocation. Perhaps unsurprisingly, the administration is trying to use Trump’s recent attack on Venezuela to press its case. It’s flirting with the idea that the president’s decision to use force outside of U.S. borders legitimizes his claim of emergency powers within them.
By the time of Operation Absolute Resolve, in which the U.S. struck Caracas and seized Venezuelan ruler Nicolás Maduro, all the briefs had been submitted in the 5th Circuit’s AEA case. But the Trump Justice Department saw fit to submit a supplemental memo this month after the successful raid. “New developments,” the administration told the court, make it “even clearer that the President’s invocation of the Alien Enemies Act was part of a high-level national security mission that exists outside the realm of judicial interference.”
Technically, the memo was to inform the court of Maduro’s indictment and the ties it alleges between his regime and Tren de Aragua. But in context, the message is more pointed: This is now a matter of presidential war policy — involving boots on the ground inside another state’s borders — that judges can’t second guess. If Trump says the U.S. is facing an invasion threat emanating from Venezuela, his judgment ought to control.
It could work. After all, the AEA explicitly ties the president’s domestic authority to the threat of war with a foreign state. The case for deferring to the commander in chief on war powers will always seem stronger after a dazzling military operation.
The American Civil Liberties Union, which is challenging the AEA’s applicability to Venezuelans in the United States, shot back in its own filing that the Trump administration was trying to have it both ways on the Maduro raid. The administration “stated that the Venezuelan operation was a ‘law enforcement’ operation,” the ACLU emphasizes. That framing is legally significant because it allowed Trump to strike Venezuela unilaterally instead of seeking authorization from Congress. But if Maduro’s misdeeds are “criminal offenses properly handled through the justice system,” why does Trump need to invoke the AEA, a law meant for interstate war?
The Trump administration also introduced the Maduro raid into another AEA case. Last month, Judge James E. Boasberg of the U.S. District Court for the District of Columbia ordered the administration to give the men deported under the AEA last year a chance for the hearing they had been denied. On Jan. 12, Secretary of State Marco Rubio submitted a new declaration to Boasberg arguing that Maduro’s capture foreclosed the possibility of due process for the Venezuelans.
“In the wake of this operation, the situation in Venezuela remains fluid,” Rubio explained, citing delicate diplomacy with Maduro’s successor. He added: “In my considered judgment as the Nation’s chief diplomat, I assess that introducing the matter of the disposition of the 137 class members into these discussions at this time would risk material damage to U.S. foreign policy interests in Venezuela.” In other words: The military assault we just carried out in Venezuela makes it too inconvenient to comply with your court order.
In 1952, the Supreme Court rebuked President Harry Truman for unilaterally seizing U.S. steel mills during the Korean War. Justice Robert H. Jackson (recently portrayed on the big screen by Michael Shannon in “Nuremberg”) rejected the idea that the president “can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.”
On the other hand, history shows that the tendency Jackson decried is a recurrent part of politics, including in liberal democracies. Even if the courts are coequal with the executive within U.S. borders, the president is in the driver’s seat in the more anarchic territory beyond them. The Trump administration is offering a glimpse of how an ambitious administration leverage that asymmetry to its advantage. It’s worth thinking about what more brazen attempts might look like.
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