Fifth Circuit En Banc Dismisses Alien Enemies Act Case as Moot

The takes

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  Adam Smith

  1723–1790, Scotland (the Scottish Enlightenment: Kirkcaldy, Glasgow, Edinburgh)

  A Wartime Law in Search of a War

  When a statute for invading armies is pointed instead at migrant labourers, the abuse of power is not merely legalistic; it corrodes both justice and the price system that sustains the poor.

  A law framed for enemies is now being stretched to fit the stranger at the gate. The Alien Enemies Act, devised in 1798 for moments of declared war or genuine invasion, has been wielded by a recent administration as an instrument of mass deportation in peacetime, directed against Venezuelans alleged to be members of a drug gang. A federal court has already ruled that illegal migration and smuggling are not an invasion of the kind the statute requires; the full court has since dismissed the case as moot, a lawyer’s way of leaving the sword where it fell. Yet the attempt to draw such a weapon is itself a revealing act of policy imagination.

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  John Locke

  1632–1704, England (writing amid the Exclusion Crisis and the Glorious Revolution)

  Calling Migration an ‘Invasion’ Is a Bid for Absolute Power

  When rulers stretch the word “war” to cover ordinary crime and migration, they do not defend the commonwealth; they claim a license to rule without consent.

  I read that in your day there is a statute, called the Alien Enemies Act, which authorizes the detention and deportation of foreign citizens when there is a declared war, or an invasion, or some “predatory incursion” by a foreign nation against the territory of the United States. I am further told that the executive now seeks to employ this law, not in the face of a declared war, but to deport Venezuelans it says belong to a drug gang; and that a court has held that ordinary illegal migration and drug smuggling are not an “invasion” of the kind the statute contemplates. This is a very old quarrel in new dress.

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  Niccolò Machiavelli

  1469–1527, Florence (republican secretary and diplomat, then exile, amid the Italian Wars)

  Stretching the Alien Enemies Act Was the Weak Man’s Strong Gesture

  When a ruler drags an old war statute into a peacetime quarrel without building the legal and political dykes around it, he shows more appetite than virtù — and invites both judicial resistance and public doubt.

  The episode is simple in its outline and tangled in its meaning. There exists in your laws an old weapon, the Alien Enemies Act, forged for moments of declared war or when a foreign government truly invades or makes a predatory incursion. A modern ruler seeks to use this weapon against Venezuelans his administration describes as members of a drug gang. The claim is that illegal migration and smuggling amount to a kind of invasion. A panel of judges in the Fifth Circuit answers that this is beyond the statute’s terms. Later, the full court dismisses the matter as moot, so the precise boundary remains fogged. The move is made, the arrow flies, but it lands in a marsh.

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