Last week the federal appeals courts in Washington agreed to halt the Trump admin's deportation of members of Tren de Aragua. In spite of it being a temporary order, it still ventured into the executive domain of government concerning war and national security. A federal court has never overruled the decision of a president or Congress that the United States has suffered an attack of invasion. Ever. The Department of Justice has petitioned the Supreme Court to review, which it is expected to do. The Court should intervene with action that prevents trial judges from interfering with the elected branches authority over war and national security.
On March 15, President Trump invoked the Alien Enemies Act to send members of TdA to a prison in El Salvador. TdA has been designated a foreign terrorist organization and Trump claimed they were conducting an invasion or predatory incursion through "irregular warfare" such as drug trafficking and mass illegal immigration into the US. The Act requires that the enemy be a "hostile nation or government". Trump claimed this standard was met as TdA is "closely aligned with and integral to the Venezuelan government."
While it may be difficult to prove that a gang integral to a hostile foreign government is conducting an invasion or incursion in the US, at this point it remains a judgment call. Are the federal courts the right governing body to make that judgment? Judicial review does not extend to every constitutional question. The Constitution itself has committed the final decision to the president or Congress on matters of national security for which there are no legal standards the courts can apply. Chief Justice John Marshall admitted that "the president is invested with certain important political powers, in the exercise of which he is to use his own discretion. For his decisions, he is accountable only to his country and to his own conscience. His choices cannot be questioned in court because the subjects are political. These issues respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive".
In the past, federal judges has refused to rule on the legality of not only the Iraq and Afghanistan wars but every war in American history, including the Guantanamo Bay cases. The courts deferred to the decision of George W. Bush that the 9/11 attacks had started a war. In the Prize Cases of 1862, the Supreme Court refused to judge whether President Abraham Lincoln had properly invoked the nations's war power in response to secession. The Court declared they could not question the merits of his decision and left the decision to "the political department of the government to which this power was entrusted". In the War of 1812, the Supreme Court also recognized that courts could not review decisions of other branches regarding war. Justice Joseph Story concluded "the authority to decide whether the exigency has arisen belongs exclusively to the president, and that his decision is conclusive upon all other persons." The court stressed that delay and confusion could arise in the ranks if questions arose over the presidents authority. The court also observed that "the evidence upon which the president might decide that there is imminent danger of invasion, might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest and safety might require they be kept in concealment."
In the Appeals Court stay, the court ignored the judiciary's traditional deference on questions of war and invasion. Judge Karen Henderson's opinion concluded "there must be hostilities." Judge Henderson, check with the families of the numerous Americans killed by TdA. They'll clue you in on the hostilities.
Federal judges do not have the capability, knowledge and understanding, or access to the information to make sensitive decisions on whether a foreign actor represents a national security threat, not can they judge the harm that may come from action or inaction. Courts at any level are not designed or tasked with making policy decisions involving probabilities and risks, which are characteristic of war and national security. Analysts and investigators have asserted that the Maduro regime in Venezuela has purposely sent TdA to the US to destabilize our political system. They have trained several hundred members for that work and assumed operational control of them.
Such is not the domain of our judicial system. The constitution is quite clear in assigning this responsibility and accountability to the executive and legislative branches. Venezuela is capable of and positioned to damage US interests in the Caribbean. China has been a longtime ally of Venezuela, dating back to the Hugo Chavez regime. To repeat, there are risks involved that the judicial branch are not qualified for nor do they have the constitutional delegation to consider matters of national security. There is basis and precedence and the Supreme Court needs to instruct them to stand down.
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