Federal Judge Launches a Predatory Incursion Against the Alien Enemies Act

Summary

Judge Fernando Rodriguez, Jr., of the U.S. District Court for the Southern District of Texas permanently enjoined the Trump administration “from detaining, transferring, or removing” three Venezuelan plaintiffs detained in Texas and members of a similar class under the Alien Enemies Act based on President Trump’s proclamation ordering the apprehension, restraint, securing, and removal of “all Venezuelan citizens 14 years of age or older who are members of [the Venezuelan transnational criminal organization Tren de Aragua] TdA, are within the [U.S.], and are not actually naturalized or lawful permanent residents of the [U.S.]”

Judge Rodriguez’s decision is not as bad as it might first appear for President Trump and for DHS’s ability to use the AEA to remove aliens who are members of those transnational criminal organizations entwined with the governments of enemy nations

• First, the Supreme Court needs to clarify to what extent the AEA can be used outside of a traditional military clash between the United States and another nation, and it needs to do it soon. By ruling against the government, Judge Rodriguez has likely accelerated the AEA’s journey to SCOTUS.
• Second, the decision is generally very well-reasoned based on solid originalist principles and actually gives President Trump important victories regarding 1) whether the depredations committed on American soil by TdA constitute the acts of a foreign government, and 2) whether the federal judiciary should take it upon itself to question the veracity of President Trump’s factual determinations underlying his designation of Venezuela as an enemy nation under the AEA.
• While, unfortunately, Judge Rodriguez based his ruling entirely on an earnest but misguided assessment of the common understanding of the term “predatory incursion against the territory of the [U.S.]” at the time of our nation’s founding — mistakenly deciding that TdA’s actions do not constitute such an incursion — the AEA’s future will still be bright should a higher court conclude that TdA’s acts do indeed constitute a predatory incursion while at the same time adopting Judge Rodriguez’s otherwise powerful legal analysis.

Introduction

Last Thursday, Judge Fernando Rodriguez, Jr., of the U.S. District Court for the Southern District of Texas concluded in J.A.V. v. Trump that:

President[ Trump]’s invocation of the [Alien Enemies Act] AEA through the [Presidential Proclamation “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua”] exceeds the scope of the [AEA] and is contrary to the plain, ordinary meaning of the statute’s terms. As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners [three natives of Venezuela detained at the El Valle Detention Center in Texas] and the certified class [consisting of Venezuelan aliens, 14 years old or older, who have not been naturalized and whom a president has designated or in the future may designate as alien enemies under the Presidential Proclamation and who are detained or reside in the Southern District of Texas], or to remove them from the country.

Judge Rodriguez ruled that named plaintiffs “are each entitled to the granting of their Petition for a Writ of Habeas Corpus” and he permanently enjoined the administration “from detaining, transferring, or removing [them and members of the class he certified] under the [AEA] and based on the Presidential Proclamation”.

Believe it or not, Judge Rodriguez’s decision is not as bad as it might first appear for President Trump and for DHS’s ability to use the AEA to remove alien members of transnational criminal organizations that have become entwined with the governments of enemy nations.

First, Thursday’s decision was simply an appetizer, an amuse-bouche even, before the main course. The Supreme Court needs to provide clarity on the extent to which the AEA can be used to safeguard the nation outside of the context of a traditional military clash between the United States and another nation, and it needs to do so soon. By ruling against the government, Judge Rodriguez has likely accelerated the AEA’s journey to SCOTUS.

Second, Judge Rodriguez’s decision is generally very well-reasoned and based on solid originalist principles and actually gives President Trump important victories regarding 1) whether the depredations committed on American soil by Tren de Aragua (TdA), the Venezuelan cartel designated a significant transnational criminal organization by the Biden administration and a foreign terrorist organization by the Trump administration, constitute the acts of the Venezuelan government, and 2) whether the federal judiciary should take it upon itself to question the veracity of President Trump’s factual determinations underlying his designation of Venezuela as an enemy nation under the AEA.

Third, it is true that Judge Rodriguez inexplicably fumbled the ball on the one-yard line by concluding that TdA’s criminal acts in the U.S. do not constitute a predatory incursion under the AEA: to paraphrase ABBA, there must have been something in the air that night you wrote your decision, Fernando. He unfortunately based his ruling entirely on an earnest but misguided assessment of the common understanding of the term “predatory incursion” at the time of our nation’s founding. However, the AEA’s future will still be bright should a higher court reject his linguistic misanalysis and conclude that TdA’s acts do indeed constitute a predatory incursion while at the same time adopting his otherwise powerful legal analysis.

The Alien Enemies Act, Venezuela, and Tren de Aragua

On March 15, President Trump issued a proclamation declaring that “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the [U.S.], and are not actually naturalized or lawful permanent residents of the [U.S.] are liable to be apprehended, restrained, secured, and removed as Alien Enemies [through the AEA]”. President Trump then “direct[ed] that all [such] Alien Enemies … are subject to immediate apprehension, detention, and removal, and further that they shall not be permitted residence in the [U.S.]” and directed “the Attorney General and the Secretary of Homeland Security” to “apprehend, restrain, secure, and remove every such Alien Enemy”.

The AEA was enacted in 1798 in reaction to a feared invasion by France. It authorizes the summary detention and removal of nationals of enemy states, outside the procedural chokepoints of the Immigration and Nationality Act (INA). The AEA was employed during the War of 1812 and during World Wars I and II and is still good law, providing in part that:

Whenever there is a declared war between the [U.S.] and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the [U.S.] by any foreign nation or government … all natives, citizens, denizens, or subjects of the hostile nation or government [at least 14 years old and not having become naturalized U.S. citizens] … shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

The Supreme Court concluded in 1948 in Ludecke v. Watkins that:

The war power… validly supports the power given to the President by the [AEA] in relation to alien enemies. Nor does it require protracted argument to find no defect in the [AEA] because resort to the courts may be had only to challenge [limited aspects of the AEA]. The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.

“Mafia States”

The AEA was conceived as a response to traditional armed conflict between nations. Can the nefarious activities of criminal cartels within our borders such as TdA qualify as being carried out by foreign nations or governments?

As I have written, Moisés Naím has documented the rise of “mafia states”, nations in which “criminals have penetrated governments to an unprecedented degree” and “rather than stamping out powerful gangs”, the “governments have instead taken over their illegal operations” with “government officials enrich[ing] themselves … while exploiting the money, muscle, political influence, and global connections of criminal syndicates to cement and expand their own power”. This has “blurr[ed] the conceptual line between states and nonstate actors”.

I have argued since 2023 that the Trump administration could make a powerful argument in court that criminal cartels and other organized criminal enterprises that have become enmeshed with the governments of “mafia states” can reasonably be considered parts of those governments. Consequently, any invasions or predatory incursions the cartels perpetrate, attempt, or threaten should be considered actions of those governments, triggering the AEA.

Assuming the applicability of the mafia state construct, do the facts bear out such a relationship between TdA and the government of Venezuela? President Trump made the case in his proclamation that they indeed do, contending that:

• Nicolas Maduro, who claims to act as Venezuela’s President … leads the regime-sponsored enterprise Cártel de los Soles, which coordinates with and relies on TdA and other organizations to carry out its objective of using illegal narcotics as a weapon to “flood” the [U.S.]

• TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus.

• [TdA has an] objective[] of … supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the [U.S.].

• [Venezuala is] a hybrid criminal state.

• [TdA is] undertaking hostile actions and conducting irregular warfare against the territory of the [U.S.] both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.

Of note, President Trump is not the first president to describe the activities of criminal cartels in such apocalyptic terms. As Judge Rodriguez himself pointed out, “In 2011, President Barack Obama issued an executive order to block property ownership by ‘transnational criminal organizations.’” President Obama determined in his EO “Blocking Property of Transnational Criminal Organizations” that “significant transnational criminal organizations constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the [U.S.], and hereby declare a national emergency to deal with that threat”. Further:

[T]he activities of significant transnational criminal organizations … have reached such scope and gravity that they threaten the stability of international political and economic systems. Such organizations are becoming increasingly sophisticated and dangerous to the [U.S.]; they are increasingly entrenched in the operations of foreign governments and the international financial system, thereby weakening democratic institutions, degrading the rule of law, and undermining economic markets. These organizations facilitate and aggravate violent civil conflicts and increasingly facilitate the activities of other dangerous persons.

Then, in July 11, 2024, President Biden’s Treasury Department placed TdA on its sanctions list as a significant transnational criminal organization.

Also of note, Moisés Naím himself concluded in 2012 that “A mafia state has … taken root in Venezuela.” He wrote that:

In 2010, President Hugo Chávez [who would go on to anoint Nicolas Maduro as his chosen successor] appointed General Henry Rangel Silva as the top commander of the Venezuelan armed forces; earlier this year, he became minister of defense. But in 2008, the U.S. Treasury Department added Rangel Silva to its list of officially designated drug kingpins, accusing him of “materially assisting narcotic trafficking activities.” The Treasury Department also recently slapped that label on a number of other Venezuelan officials, including five high-ranking military officers, a senior intelligence officer, and an influential member of congress allied with Chávez. In 2010, a Venezuelan named Walid Makled, accused by several governments of being the head of one of the world’s largest drug-trafficking groups, was captured by Colombian authorities. Prior to his extradition to Venezuela, Makled claimed that he had videos, recorded telephone conversations, canceled checks, and other evidence proving he worked for a criminal network that involved 15 Venezuelan generals (including the head of military intelligence and the director of the antinarcotics office), the brother of the country’s interior minister, and five members of congress.

Owing in part to such ties … the country now supplies more than half of all cocaine shipments to Europe. … And the drug trade is not the only illicit activity that has flourished in Venezuela’s era of state-sanctioned crime: the country has also become a base of operations for human trafficking, money laundering, counterfeiting, weapons smuggling, and the trade in contraband oil.

J.A.V. v. Trump

“Mafia State”

Judge Rodriguez wrote that “Petitioners … argue that [President Trump’s] Proclamation fails to properly invoke the AEA because it is not based on an invasion or predatory incursion ‘by any foreign nation or government.’”

Can the actions of TdA as described by President Trump be attributable to the government of Venezuela for the purposes of the AEA under a “mafia state” theory? Judge Rodriguez gave the Trump administration a clear victory here, concluding that the existence of a mafia state can indeed satisfy the AEA’s “foreign nation or government” test.

Judge Rodriguez first noted that the Trump administration’s pleadings in the case “accurately characterize[s] the Proclamation’s message: ‘TdA has become indistinguishable from the Venezuelan state.’” He then concluded that “As a result, the Court concludes that the Proclamation places responsibility for TdA’s actions in the [U.S.] on the Venezuelan government, which satisfies this aspect of the AEA.” (Emphasis added). To Judge Rodriguez, “[g]iven this conclusion”, it did not matter whether “TdA itself represents a ‘foreign nation or government’”. It was unnecessary for him to “resolv[e] the precise meaning of ‘foreign nation or government’” in the AEA.

When I first proposed using the “mafia state” construct to justify use of the AEA in the context of transnational criminal organizations, I cautioned that “Whether federal courts would be persuaded by such arguments is an open question.” Little did I know that persuading federal judges (or at least this particular federal judge) would be so easy; it took Judge Rodriguez only four sentences to accept and apply the mafia state construct to the AEA.

In another significant victory for President Trump, Judge Rodriquez concluded that it was not the role of the judiciary to weigh the evidence in this matter — he had to respect President Trump’s assessment that the facts bore out a “mafia state” relationship between TdA and Maduro’s government. Judge Rodriquez concluded that “the political question doctrine prohibits the Court from weighing the truth of those factual statements, including whether Maduro directs TdA’s actions or the extent of the referenced criminal activity”. I will discuss the political question doctrine below, but what is important here is Judge Rodriguez’s conclusion that if a president lays out factual predicates for a mafia state relationship satisfying the “foreign government or nation” test of the AEA, federal courts are not to conduct an independent analysis of the veracity of those factual predicates.

Has Judge Rodriguez ratified and supercharged the applicability of the “mafia state” construct to the AEA? Fuhgeddaboudit!

Predatory Incursions

President Trump’s Proclamation declared that “TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the [U.S.]”, contending that TdA has “thousands of members, many of whom have unlawfully infiltrated the [U.S.] and are conducting irregular warfare and undertaking hostile actions against the [U.S.]”, that TdA “commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking” and that TdA “has engaged in and continues to engage in mass illegal migration to the [U.S.] to further its objectives of harming [U.S.] citizens[ and] undermining public safety”. However, the petitioners “dispute[d] that any ‘invasion’ or ‘predatory incursion’ has occurred, been threatened, or been attempted”, as Judge Rodriguez wrote.

What did Judge Rodriguez conclude as to the term’s meaning and whether TdA’s actions in the U.S. may be considered to meet such definition? He noted that the petitioners “highlight that Congress enacted the AEA as a war time measure, and that ‘Congress understood [‘invasion’ and ‘predatory incursion’] to mean a military incursion[.’]” The petitioners “rely on various dictionary definitions and historical sources that use those terms in a military context” and “argue that the conduct by TdA and Venezuela as described in the Proclamation does not arise to an invasion or predatory incursion because it does not entail a military action, either actual or threatened”.

As Judge Rodriguez also noted, the Trump administration “urge[s] a broader reading … contend[ing] that while the definitions for these terms ‘include military action, … neither is limited to such action.’” (Emphasis added by the Trump administration.) He writes that, according to the administration, a predatory incursion “encompasses (1) an entry into the [U.S.] (2) for purposes contrary to the interests or law of the [U.S.]” and that “[a]pplying these broader concepts to the Proclamation, [it] argue[s] that the Proclamation accurately describes a[] … ‘predatory incursion’ by detailing that ‘TdA’s illegal entry and continued unlawful presence is an encroachment on U.S. territory that entails hostile acts contrary to the rights of citizens to be free from criminality and violence.’”

In trying to determine the precise meaning of “predatory incursion”, Judge Rodriguez explained that:

Courts normally interpret statutory terms “consistent with their ordinary meaning at the time Congress enacted the statute.” … When ascertaining the plain, ordinary meaning of statutory language that harkens back to the nation’s founding era, courts rely on contemporaneous dictionary definitions and historical records that reveal the common usage of the terms at issue. … While most English words have multiple dictionary meanings, courts “use the ordinary meaning of terms unless context requires a different result.” [quoting the Supreme Court’s 2007 decision in] Gonzales v. Carhart. … At times, terms can hold more than one ordinary meaning [Citing the Supreme Court’s 2008 decision in United States v. Santos. ]… Reviewing courts … apply “the contextually appropriate ordinary meaning, unless there is reason to think otherwise.”[Quoting Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts.]

Judge Rodriguez credited “Petitioners’ briefing [as] contain[ing] numerous sources contemporaneous to the enactment of the AEA in which … ‘predatory incursion’ expressly reference[s] or impl[ies] military action”, but stated that the Trump administration “offer[s] no sources from the nation’s founding era as to the ordinary meaning of ‘predatory incursion’”. Thus, “[t]o augment the parties’ submissions”, Judge Rodriguez “reviewed numerous historical records using ‘invasion,’ ‘predatory incursion,’ and ‘incursion’ for the period from 1780 through 1820.” The full results are available in an appendix to his decision.

To Judge Rodriguez, his “review strongly supported the Petitioners’ position”. He stated that “[i]n the significant majority of the records, the use of … ‘predatory incursion’ referred to an attack by military forces”, “at times referr[ing] to entries by Native Americans into the western territories” as “organized group[s] of armed individuals entering an area to attack a fort, settlement, or town”. Thus, “at the time of the AEA’s enactment … the common usage of ‘predatory incursion’ … referenced a military force or an organized, armed force entering a territory to destroy property, plunder, and harm individuals, with a subsequent retreat from that territory”.

Judge Rodriguez concluded that:

Based on the plain, ordinary meaning of those terms in the late 1790’s, the Court concludes that the factual statements [in the Proclamation, taken as true] do not [describe an invasion or predatory incursion for purposes of the AEA]. … As for “predatory incursion,” the Proclamation does not describe an armed group of individuals entering the [U.S.] as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives. While the Proclamation references that TdA members have harmed lives in the [U.S.] and engage in crime, the Proclamation does not suggest that they have done so through an organized armed attack, or that Venezuela has threatened or attempted such an attack through TdA members. As a result, the Proclamation … falls short of describing a “predatory incursion” as that concept was understood at the time of the AEA’s enactment.

Judge Rodriguez admitted that in a minority of the records he reviewed, the term predatory incursion did not in fact refer to an attack by military forces, stating that “in … a few sources … the use of … ‘predatory incursion’ reference[d] a non-military action”. However, he found that “those rare uses do not represent the ordinary meaning”. But on what basis did Judge Rodriguez reach this conclusion, given that he had acknowledged that “[a]t times, terms can hold more than one ordinary meaning”?

Let’s consider two of the documents that Judge Rodriguez thought support an ordinary meaning of predatory incursion as not necessarily requiring a military force or an organized armed force. First, in President George Washington’s annual message to the U.S. Congress on December 7, 1796, Washington stated that:

Measures calculated to ensure a continuance of the friendship of the Indians, and to preserve peace along the extent of our interior frontier, have been digested and adopted. In the framing of these, care has been taken to guard … our advanced settlements from the predatory incursions of those unruly individuals, who cannot be restrained by their Tribes. [Emphasis added.]

“[U]nruly individuals, who cannot be restrained by their Tribes”? That doesn’t sound to me like a military force or an organized armed force. It sounds more like a disorganized gang who couldn’t shoot straight.

Second, on August 5, 1812, Massachusetts Gov. Caleb Strong wrote to Secretary of War W. Eustis that “a person deputed by the towns of Eastport and Robinston … applied to me, representing that they had no apprehensions of invasion by an authorized British force, but that there were many lawless people on the borders from whom they were in danger of predatory incursions”. (Emphasis added.)

“[L]awless people” not sanctioned by the British government? Again, that doesn’t sound to me like a military force or an organized armed force.

Nothing in those two documents indicates to me that President George Washington and Massachusetts Gov. Caleb Strong were using the term “predatory incursion” in a manner they considered outside the bounds of its ordinary meaning(s). They were not engaging in hyperbole or metaphor. They were simply and matter-of-factly categorizing the situation on the ground as they saw it — as predatory incursions.

Further, there is nothing at all anachronistic in talking about criminal enterprises as military threats during the time of our nation’s founding. Consider the Barbary States, that were both nations and pirates. The State Department’s Office of the Historian has explained that:

The Barbary States were a collection of North African states, many of which practiced state-supported piracy in order to exact tribute from weaker Atlantic powers. … The [U.S.] fought two separate wars with Tripoli (1801-1805) and Algiers (1815–1816), although at other times it preferred to pay tribute to obtain the release of captives held in the Barbary States.

The practice of state-supported piracy and ransoming of captives was not wholly unusual for its time. Many European states commissioned privateers to attack each others’ shipping … . Great Britain and France[] found it expedient to encourage the Barbary States’ policy and pay tribute to them, as it allowed their merchant shipping an increased share of the Mediterranean trade, and Barbary leaders chose not to challenge the superior British or French navies.

The Barbary States practiced state-supported piracy. Yes, they were nations, but that does not diminish the fact that it was their piracy that was viewed as a military problem requiring a military response. If the Barbary States had carried out their piracy in U.S. territorial waters, rather than in the Mediterranean Sea and the Atlantic Ocean, I expect that President Jefferson would have characterized their acts as predatory incursions, just as President Trump has done regarding TdA’s acts.

As I observed earlier, Judge Rodriguez inexplicably fumbled the ball on the one-yard line by concluding that TdA’s acts do not constitute a predatory incursion. His assessment of what the term was commonly understood to mean at the time of our nation’s founding was earnest but misguided. It should be overturned on appeal.

Political Questions

Judge Rodriguez wrote that the Trump administration “contend[s] … that the ‘President’s authority and discretion under the AEA is not a proper subject for judicial scrutiny.’… Relatedly, [it] claim[s] that ‘[w]hether the AEA’s preconditions are satisfied is a political question committed to the President’s discretion[.]’”

Judge Rodriguez looked to the Supreme Court’s 1962 decision in Baker v. Carr, in which the Court “identified six ‘formulations … in which the issues [that a lawsuit presents] may describe a political question’”. The Court in Baker had stated that:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

The Court in Baker then concluded that “Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence.”

Judge Rodriguez noted that he was “unaware of any judicial authority declining to determine the meaning of the AEA’s terms based on the political question doctrine” and that “[n]o court appears to have applied the Baker analysis to the AEA”. He reasoned that:

Based on the Supreme Court’s decisions regarding the AEA, as well as the principles enumerated in Baker, [I] conclude[] that while [I] may not adjudicate the veracity of the factual statements in the Proclamation, or the propriety of the steps taken by the President as to Venezuelan aliens and TdA members, [I] retain[] the authority to construe the AEA’s terms and determine whether the announced basis for the Proclamation properly invokes the statute.

Judge Rodriguez’s analysis represents both a partial defeat and a partial victory for the Trump administration, and my view is that he came to the correct conclusion. He wrote that:

The Supreme Court in [Trump v. J.G.G. in April] confirmed that “questions of interpretation” [of the statutory terms of the AEA] fall within the Judiciary’s responsibility. This role is not surprising, given that whether a government actor’s “interpretation of [a] statute is correct … is a familiar judicial exercise.” [Quoting the Supreme Court’s 2012 decision in Zivotofsky ex rel. Zivotofsky v. Clinton.], see also [the Supreme Court’s 1986 decision in] Japan Whaling Ass’n v. American Cetacean Soc’y (“[I]t goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts.”). “[T]hat a case or controversy may involve the conduct of the nation’s foreign affairs does not necessarily prevent a court from determining whether the Executive has exceeded the scope of prescribed statutory authority or failed to obey the prohibition of a statute or treaty.” [Quoting the D.C. Circuit’s 2010 decision in El-Shifa Pharmaceutical Industries Co. v. United States.]… At times, analyzing whether a government official has impermissibly crossed statutory boundaries requires determining the meaning of statutory terms and gauging the government’s actions against those determined parameters. See, e.g,, [the Supreme Court’s 1958 decision in] Harmon v. Brucker … (“The District Court had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the respondent did exceed his powers.”)

Judge Rodriguez concluded that “As applied to the AEA, this principle signifies that only by construing the meaning of ‘invasion,’ ‘predatory incursion,’ and ‘foreign nation or government’ can the Court analyze whether the President has properly invoked the statute through the Proclamation, or whether he has exceeded his statutory authorization.”

Importantly, Judge Rodriguez found that:

[C]onstruing the language of the AEA does not require courts to adjudicate the wisdom of the President’s foreign policy and national security decisions. Determining what conduct constitutes an “invasion” or “predatory incursion” for purposes of the AEA is distinct from ascertaining whether such events have in fact occurred or are being threatened. The former turns on applying accepted principles of statutory construction; the latter on analyzing factual intelligence and data, including some to which the Executive Branch possesses unique access, and applying independent judgment and weighing competing priorities. Courts routinely engage in the former, but are ill-equipped to second guess the President’s decisions as to the latter.

. . .

[S]ome issues that Petitioners raise present a political question beyond judicial review. Once a court defines the parameters of what conduct constitutes a[] … “predatory incursion” for purposes of the AEA, the court leaves to the Executive Branch the determination of whether such conduct has been perpetrated, attempted, or threatened. For example, a court may decide that one aspect of … “predatory incursion” requires physical entry into the [U.S.] In other words, a court may conclude that no invasion or predatory incursion has occurred or has been threatened if the alleged conduct does not involve the entry of individuals into the country. The court having determined the meaning of these terms, it is left to the Executive Branch to determine whether a foreign nation or government has threatened or perpetrated activity that includes such an entry. As to this decision, the court may not delve into whether the Executive Branch possesses sufficient support for its conclusion, or whether the court agrees with the Executive Branch’s determinations.

Judge Rodriguez further explained his reasoning:

That analysis would require the Executive Branch to disclose to the court the domestic and foreign intelligence that undergirds the finding of an actual or threatened invasion or predatory incursion. And requiring the Executive Branch to do so would run counter to the admonition that “it is inconceivable that before an alien enemy could be removed from the territory of this country in time of war, the President should be compelled to spread upon the public record in a judicial proceeding the method by which the Government may detect enemy activity within our borders[.]” [Quoting the D.C. Circuit’s 1946 AEA decision in Citizens Protective League[ v. Clark.] … Thus, in the present case, while the Court will construe the meaning of the AEA’s language, the Court declines to consider Petitioner’s argument that “the Proclamation’s conclusory ‘findings[]’ [regarding Venezuela and TdA] … cannot survive even the most minimally searching inquiry because they are simply incorrect as a factual matter.” [Emphasis in original.]

Judge Rodriguez did clarify that:

[A] Presidential declaration invoking the AEA must include sufficient factual statements or refer to other pronouncements that enable a court to determine whether the alleged conduct satisfies the conditions that support the invocation of the statute. The President cannot summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion.

Judge Rodriguez stated that the petitioners “note the observation” by now Supreme Court Justice Brett Kavanaugh in his concurrence in the D.C. Circuit’s decision in El-Shifa that “The Supreme Court has never applied the political question doctrine in a case involving alleged statutory violations.” (Emphasis in the concurrence.) A fuller quotation from Justice Kavanaugh states that:

• Importantly, the Supreme Court has invoked the political question doctrine only in cases alleging violations of the Constitution … never [having] applied the … doctrine in a case involving alleged statutory violations. Never. [Emphasis in original.]

• Under Article III of the Constitution, “one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones.” [Quoting the Supreme Court’s decision in Japan Whaling Ass’n.]

Why has the Supreme Court never done so? In Kavanaugh’s view, it was to safeguard Congress’ constitutional powers:

There is good reason the political question doctrine does not apply in cases alleging statutory violations. If a court refused to give effect to a statute that regulated Executive conduct, it necessarily would be holding that Congress is unable to constrain Executive conduct in the challenged sphere of action. As a result, the court would be ruling (at least implicitly) that the statute intrudes impermissibly on the Executive’s prerogatives under Article II of the Constitution. In other words, the court would be establishing that the asserted Executive power is exclusive and preclusive, meaning that Congress cannot regulate or limit that power by creating a cause of action or otherwise.

Applying the political question doctrine in statutory cases thus would … systematically favor the Executive Branch over the Legislative Branch — without the courts’ acknowledging as much or grappling with the critical separation of powers and Article II issues. The fact that use of the political question doctrine in statutory cases loads the dice against the Legislative Branch presumably explains why there is no Supreme Court precedent applying the doctrine in statutory cases.

. . .

In short, the question whether a statute intrudes on the Executive’s exclusive, preclusive Article II authority must be confronted directly through careful analysis of Article II — not answered by backdoor use of the political question doctrine, which may sub silentio expand executive power in an indirect, haphazard, and unprincipled manner.

Brett Kavanaugh’s reasoning seems solid to me.