A Trump-appointed judge used a moot deportation case to map out how a president’s “invasion” declaration could end birthright citizenship.
On Thursday, the full Fifth Circuit Court of Appeals dismissed an ACLU lawsuit challenging President Donald Trump’s use of the 1798 Alien Enemies Act to deport three Venezuelans. The Trump administration deported them by saying they were members of the gang Tren de Aragua, which Trump claimed was perpetrating an “invasion.”
The court called the move by the Trump administration “unobjectionable” in its opinion and dismissed the lawsuit as moot because the three had already been deported. However, in a piece for Reason published shortly after the decision, legal scholar Ilya Somin flagged an argument made by Judge James Ho that he said gives Trump a “blank check” for more sweeping actions.
Ho wrote that courts had no role in reviewing a president’s invasion call.
“Determining the existence of a state of invasion is a quintessentially executive prerogative — not a judicial one,” Ho wrote. “Judges may not review the President’s determination of an invasion.”
He then tied that theory to a broader target, writing that affirming Trump’s power to declare an invasion would reach “any number of other cases and controversies that likewise turn on a state of invasion.” Ho hinted at what he had in mind by attaching to that line a citation to Sen. Jim Banks’ op-ed “To fix birthright citizenship, declare a foreign invasion,” and to a bill by Rep. Brandon Gill (R-TX) that aims to end birthright citizenship during a declared “invasion.”
Somin, who co-authored an amicus brief against the Trump administration, warned that it wouldn’t stop with an assault on birthright citizenship.
According to Somin, Ho’s “absolute deference” turns emergency powers into “blank checks the president can invoke any time he wants.” Somin said that “would allow the federal government to suspend the writ of habeas corpus (and thereby detain people – including U.S. citizens – without due process) at any time.”
Somin even noted that a Department of Justice attorney agreed that the Trump administration could respond to the 1960s “British Invasion” by deporting The Beatles under the Alien Enemies Act.
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