Why are Courts Reviewing a Non-Reviewable Presidential Act?

Judges from the highest court down to the district court level concede the Alien Enemies Act is largely immune from judicial review. So what exactly are the courts doing and what is the end game?

There is still much to be said and analyzed related to the Supreme Court’s stunning sabotage of presidential power over the weekend with its 7-2 decision that again paused deportations of illegal Venezuelans covered by President Donald Trump’s Alien Enemies Act proclamation enacted last month. (My background on the overall controversy here.)

I will leave the detailed legal explanations of the current matter to folks like Josh Blackman at Reason: his articles can be found here, here, and here. A good accounting of the timeline is here by Margot Cleveland.

Perhaps most damning is the dissent authored by Justice Samuel Alito, joined only by Justice Clarence Thomas, which consisted of a stern rebuke of his seven bench mates for their hasty rush to judgement. “In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order, Alito wrote on April 19, also Holy Saturday. “I refused to join the Court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate.’

SCOTUS’ latest missive represents the second time the highest court has flexed its muscle to headlock, if even temporarily, the president’s top policy priority, one that is supported by a wide swath of the American people—which prompts two crucial questions: What happens next and why are the courts involved in a matter everyone appears to agree is exclusive presidential turf?

Dreams of Freed Illegals?

Since SCOTUS posted its decision in the wee hours of a Saturday morning—mimicking what Judge James Boasberg did a month ago in the first lawsuit of this nature— both the Trump Department of Justice and the American Civil Liberties Union, which is defending potential AEA subjects in numerous jurisdictions, have responded. The highest court has yet to set any deadlines; the case, which this time originated in northern Texas, is essentially at a standstill in the lower courts due to SCOTUS’ middle-of-the-night premature adjudication.

But in denying the ACLU’s emergency motion for a temporary restraining order to halt the removal of two unidentified AEA subjects, U.S. District Court Judge James Wesley Hendrix for the Northern District of Texas noted the court’s slim if not nonexistent role in the execution of the Alien Enemies Act.

“The petitioners ask the Court to decide ‘as soon as possible’ whether to restrain the federal government from exercising its immigration powers—a realm in which the political branches, not the judiciary, enjoy substantial power and responsibility,” Hendrix wrote in his April 17 decision. To support his thinking, Hendrix cited a 1952 Supreme Court decision that determined “policies in regard to the conduct of foreign relations…are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”

Hendrix, a Trump appointee, then added a warning. “The Court must tread carefully when making such a hasty decision, especially one of significant magnitude.”

Hendrix also reminded the ACLU of the Supreme Court’s own acknowledgement of limited judicial authority in the matter. “[The] Supreme Court has recently noted that the Alien Enemies Act largely precludes judicial review.”

In doing so, Hendrix raised the borderline schizophrenic mindset of the highest court. Hendrix was referring to SCOTUS’ 5-4 opinion last month that vacated Boasberg’s two temporary restraining orders banning the initial set of AEA deportation flights. SCOTUS’ April 7 opinion conceded that “judicial review under the AEA is limited.” (The justices, however, all agreed that “an individual subject to detention and removal under that statute is entitled to ‘judicial review.’” The court then vaguely instructed the Trump administration to give notice under the AEA “within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.”)

How a “Close Call” in Determining Separate of Powers is Anything But

But if judicial review is “limited,” how does the Supreme Court’s broad intervention in two separate AEA-related lawsuits meet that standard?

So on one hand, SCOTUS admits their role—and the role of other courts—is “limited” but then takes a huge leap to prohibit the Trump administration from removing “any member of the putative class of detainees from the United States” under the Alien Enemies Act?

Further, how can the Supreme Court side with a “putative class of detainees”—meaning any illegal in the jurisdiction subject to deportation under the AEA—when it had just emphasized “individual” review under habeas?

What exactly is happening here?

Even Boasberg had acknowledged the thin line he crossed in ordering his initial halt on deportation flights. “Given the broad powers the Executive possesses in national security and foreign affairs, this issue is a close call,” Boasberg wrote in a March 24 opinion. He then continued to cite case law, including Ludecke v. Watkins, as the basis for proceeding anyway. (The Trump administration disputes his interpretation of that case law.)

Boasberg further admitted that the ACLU’s lawsuit “implicates a host of complicated legal issues, including fundamental and sensitive questions about the often-circumscribed extent of judicial power in matters of foreign policy and national security.”

Meanwhile, the Trump administration continues to defend the president’s power to invoke the Alien Enemies Act without interference by the judicial branch. “The AEA buttresses the President’s Article II authorities over national security by expressly empowering him to remove alien enemies—a power that this Court has held is largely unreviewable,” Solicitor General John Sauer wrote in an April 19 response to the Supreme Court in the northern Texas matter. Further, Sauer—who successfully defended Trump in the landmark presidential immunity question before the court last year—argued “the limited habeas review available in an AEA case cannot be pursued in a class action.”

Emboldened by SCOTUS, Colorado Judge Declares an Invasion is not an Invasion

According to immigration data, the number of Venezuelans entering the U.S. illegally skyrocketed under the Biden regime; over a half a million migrants from Venezuela crossed the border between 2021 and 2024; U.S. Customs and Border Protection encountered 334,914 Venezuelans in 2023 alone, making the country second only to Mexico in terms of illegals crossing the border.

The president’s AEA seeks to immediately remove a small sliver of that number—Venezuelans who are 14 years or older with ties to Tren de Aragua, a multinational criminal enterprise designated a foreign terrorist organization by the Trump administration. But even this logical and popular policy is being sabotaged by an army of ACLU lawyers and federal judges including those on the Supreme Court.

And thanks to SCOTUS, other judges are now emboldened to further encroach on what has historically been considered a largely untouchable area of presidential purview. On Tuesday, Colorado Judge Charlotte Sweeney, a Biden appointee, took the existing judicial trajectory to a new level. Sweeney not only established guidance the Trump administration must follow related to AEA subjects in her jurisdiction— “twenty-one (21) day notice to individuals detained pursuant to the Act…and a notice of a right to seek judicial review, and inform individuals they may consult an attorney regarding their detainment and the government’s intent to remove them”—she also disputes the president’s finding that the influx of TdA gang bangers represents an “invasion” or “predatory incursion.”

“These words, fundamentally, demand military and wartime action,” Sweeney wrote. “The Proclamation makes no finding that satisfies these definitional demands. Thus, to the extent the Proclamation relies on the Act’s ‘invasion’ and ‘incursion’ provisions to justify its removal powers, it does so improperly.”

Way to go, SCOTUS.