Fifth Circuit En Banc Dismisses Alien Enemies Act Case as Moot
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.
When I wrote my Second Treatise, I defined political power as a right of making laws with penalties for the regulating and preserving of property, and of employing the force of the community, all only for the public good. That definition was meant to exclude any claim to a right of ruling men at pleasure. Men leave the state of nature, where they are free yet exposed, in order that their lives, liberties, and estates may be better secured by known standing laws, and by indifferent judges. Any authority that cannot be shown to improve upon that baseline, for those subject to it, stands already under suspicion.
Here the question is not whether a people may defend their borders, or punish crimes of smuggling and gang violence. They not only may; they must, for rulers are trustees for the community’s safety. The question is whether such evils may be called an “invasion”, so as to unlock a special power to seize and expel whole classes of foreign persons, including even those who are lawfully present, merely because they are citizens of a country from which offenders have come. To stretch words so, in order to stretch power, is a familiar temptation of governors, and one that free peoples neglect at their peril.
In my Essay Concerning Human Understanding I urged that men ought not contend in sounds, when they have yet no settled ideas to which those sounds are annexed. “Invasion” is such a word. Properly taken, in your statute’s own company, it seems to mean an armed assault or predatory incursion by another government, a state of public war. To make the same word serve also for scattered crimes by private malefactors, or for the unlawful entrance of peaceful though irregular migrants, is to confound things that the understanding must distinguish, if it is to proportion assent to the evidence. Where the terms are elastic, the liberties of men are at risk.
For consider what follows if rulers may, upon their own declaration that an “invasion” is threatened, treat all subjects or residents of some foreign nation as enemy aliens. First, they become judges in their own case: they decide both that a state of war exists, and that therefore their extraordinary measures are justified. Secondly, they gain power over the liberty and even the lawful presence of persons who have, so far as appears in the facts before me, committed no individual offense proved by due process. This is not punishment of crime, but a kind of civil proscription by association, and it approaches that arbitrary power which is worse than the state of nature it pretends to remedy.
I observe with interest that a court has already ruled that illegal migration and drug smuggling do not qualify as the sort of “invasion” the Act requires, thus limiting the executive’s appeal to danger. Later, the full bench dismissed the particular case as moot, and so did not enlarge that power. I cannot judge the technical reasons of mootness on such slender information, yet I can say this: in a constitution where the legislative has authorized prerogative for times of war, it is a mercy when the judicial power refuses to widen the occasions of war beyond what the law plainly speaks. Powers of this sort are tolerable only while they are narrow, demonstrably necessary, and revocable.
I do not assert that Venezuelan gang violence is imaginary, nor that borders may stand open to all comers; I assert only that the evils named to me fall short of that public state of war which alone could justify treating whole nationalities, including lawful migrants, as enemy persons. To deport men under a war statute, absent war, is to exercise a power that free and equal men could never be supposed to have consented to bear. When rulers once learn that by re‑christening crime as “invasion” they may command such power, a long train of abuses is seldom far behind.
uncertainty_note":"I write under the disadvantage of partial reports, and so cannot speak to the full evidences of danger or the court’s reasoning, only to the principles by which such claims of power must, in reason, be tried."}```
From the works cited
- Second Treatise of Government — Political power defined narrowly as the right to make laws, with penalties, only for the public good — anything beyond that definition must justify itself or stand condemned.
- Second Treatise of Government — The state of nature as analytic baseline: perfect freedom and equality under the law of nature, so that government must be shown to improve on that baseline for everyone who leaves it.
- An Essay Concerning Human Understanding — Demand the observational chain behind any claim, proportion assent to the evidence, and cash out ambiguous words into clear ideas before letting an argument proceed — most controversies are verbal confusions wearing armor.