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President Donald Trump speaks to reporters before signing an executive order in the Oval Office of the White House in Washington, Monday, March 31, 2025 (Pool via AP).
A group of conservatives and a bipartisan nonprofit are imploring the U.S. Supreme Court to reject the Trump administration’s appeal of an order barring the government from continuing to conduct large-scale, at-will deportations using an obscure 18th-century wartime power.
In a Tuesday amicus — or friend of court — brief, the State Democracy Defenders Fund and “former public officials who were elected as Republicans or served in Republican administrations” say the government’s arguments in its petition for an administrative stay “would undermine our constitutional order by usurping the function of the Judiciary and eviscerating basic principles of judicial review.”
Those principles are especially important in national security cases where courts “protect individual liberty,” the amicus brief argues.
In the case before the high court, the Trump administration says it should be able to continue using the Alien Enemies Act (AEA) of 1798 to mass-deport suspected gang members while litigation plays out at the lower court level. The judge overseeing the case has famously, or perhaps infamously, issued a series of increasingly critical orders barring and condemning the government’s actions and arguments.
Donald Trump’s administration, so far, has invoked the AEA to justify mass deportations of members of one particular Venezuelan gang — and at least one nonmember. In the executive order underlying the litigation, Trump called for the removal of “all Venezuelan citizens 14 years of age or older who are members” of Tren de Aragua (TdA), which was designated as a foreign terrorist organization in January.
Pushing back against the injunction issued by U.S. District Chief Judge James E. Boasberg, the government railed against what it called “rule-by-TRO” and framed the case that might be take up by the justices as a question “about who decides how to conduct sensitive national security-related operations in this country — the President … or the Judiciary.”
The amici rubbish this characterization as entirely off-base.
“There is no doubt that the President is responsible for national security,” the filing reads. “This case instead presents the question of which Branch has the final word on interpreting the limits that Congress placed on the exercise of presidential authority under the Alien Enemies Act. The answer to this question is the Judiciary, but Applicants assert that presidential proclamations and actions purporting to invoke the AEA are largely immune to judicial review.”
The AEA has only ever been used during an actual war between the United States and another country. The amici, echoing the plaintiffs in the case itself and several judges who have weighed in so far, say an actual war is a precondition for the controversial statute’s legal invocation.
“The AEA grants the President extraordinary powers to summarily detain and remove so-called ‘alien enemies’ but strictly conditions those powers on the existence of wartime conflicts with foreign nations,” the brief goes on. “The President may invoke the Act only in the event of a ‘declared war’ with or an ‘invasion or predatory incursion’ by a ‘foreign nation or government.’ If none of these events is occurring or threatened, the President has no authority to act under the AEA.”
The Trump administration, for its part, aims to advance a liberal reading of the statute. The government wants the nation’s highest court to bless an argument that the “or any invasion or predatory incursion,” phrasing within the statute allows the president to extend the AEA to include foreign criminal gangs. This reading, the government says, would essentially put the president on a wartime, or at least national security, footing and insulate his decisions from judicial review.
The amici say this is an attempt at an end-run around the courts.
“Applicants re-write the AEA to merely ‘require the President to make … findings’ that his statutory powers are in effect and question whether ‘courts could look behind the President’s determinations’ while asking this Court to grant relief,” the brief continues. “This position is incorrect and dangerous. Congress expressly conditioned the Executive’s AEA authorities to times of ‘declared war,’ ‘invasion,’ or ‘predatory incursion,’ and it is the Judiciary’s role — not the President’s — to construe the Act and judge whether the President’s determination that one of these conditions exists complies with the statute.”
The filing goes on to extol the virtues of court oversight, at length:
Judicial review is intrinsic to the essential checks and balances the Framers enshrined in our constitutional system. Such review prevents the abuse of executive authority by ensuring that the President exercises the powers conferred by the AEA only in the circumstances Congress specified. Applicants’ request to vacate the Temporary Restraining Orders issued by the district court invites the Court to hold that the Executive’s implementation of the Act is largely shielded from review by Article III courts, even when the President acts outside the context of war that Congress made necessary to the AEA’s use. The Court should reject this invitation to subvert our constitutional order and leave the Temporary Restraining Orders in place.
In one of the only other cases ever examining the AEA, the Supreme Court found that a court could determine “whether the conditions precedent for invoking the AEA” exist in the first place, the brief explains.
The amici urge the high court not to abandon that precedent now.
“The President has no discretion to wield his authority to detain and deport under the AEA without the statute’s conditional clause first being satisfied,” the brief reads. “That 137 people may already have been deported unlawfully, and in light of past presidents’ broad and punishing (even where legal) uses of the AEA and other war powers, makes it even more critical that the Proclamation be subject to judicial review to ensure that the President has not exceeded his authority.”
The brief spends considerable time arguing that self-styled national security interests claimed by the president cannot and should not be used as an exception to the rules that protect “individual liberties,” and should lead to the courts keeping a closer eye on the executive branch.
To this end, the filing cites a number of George W. Bush-era cases that worked to substantially curtail presidential power during the height of the Global War on Terror.
Again, the amicus brief, at length:
Applicants’ position, moreover, is inconsistent with this Court’s recognition that the basic principle of judicial review is unyielding, even in the face of national security interests. “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004); see also Hamdan v. Rumsfeld, 548 U.S. 557, 559 (2006) (emphasizing “the Court’s duty, in both peace and war, to preserve the constitutional safeguards of civil liberty.”). Under our constitutional order, “[l]iberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” Boumediene v. Bush, 553 U.S. 723, 798 (2008). Here, the AEA’s plain text sets conditions precedent to the President’s removal authority. The President’s fatally flawed invocation of the AEA to summarily remove individuals from the country manifestly violates that “framework of the law,” and judicial review is necessary to preserve the allocation of authority among the Branches and the rule of law.
The lead attorney representing the amicus is anti-corruption crusader Norm Eisen. The filing bluntly asks the justices to flat-out reject the government’s application.
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