re: A Judge Has Ruled That Deporting Illegals is Unconstitutional. Lawyers, Explain the Logic

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Only Congress can declare.

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Already has. AUMF.

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As a corollary, the Court concludes 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 of the United States, followed by the identification of the alien enemies subject to detention or removal. Cf. United States v. Abbott, 110 F.4th 700, 736 (5th Cir. 2024) (“To be sure, a state of invasion under Article I, section 10 does not exist just because a State official has uttered certain magic words.”) (Ho, J., concurring). Allowing the President to unilaterally define the conditions when he may invoke the AEA, and then summarily declare that those conditions exist, would remove all limitations to the Executive Branch’s authority under the AEA, and would strip the courts of their traditional role of interpreting Congressional statutes to determine whether a government official has exceeded the statute’s scope. The law does not support such a position. See, e.g., Comm. for Nuclear Resp., Inc. v. Seaborg, 463 F.2d 788, 793 (D.C. Cir. 1971) (“An essential ingredient of our rule of law is the authority of the courts to determine whether an executive official or agency has complied with the Constitution and with the mandates of Congress which define and limit the authority of the executive.”); see also Boumediene v. Bush, 553 U.S. 723, 783 (2008) (reasoning that a court considering a person’s habeas action challenging his detention based on an executive order “must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive’s power to detain”).

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The Court is mindful that the Executive Branch may possess sensitive and confidential information leading to its conclusion that a foreign nation or government has attempted, threatened, or perpetrated an invasion or predatory incursion of the United States. But this possibility does not require the conclusion that the AEA is an exception to the general rule that courts possess the traditional role of interpreting Congressional statutes and determining whether a government actor has exceeded the scope of the law. While a President’s declaration invoking the AEA need not disclose all of the information that the Executive Branch possesses to support its invocation of the statute, it must identify sufficient information to permit judicial review of whether the foreign nation or government’s conduct constitutes an actual, attempted, or threatened invasion or predatory incursion of the United States.7

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Petitioners’ briefing contains numerous sources contemporaneous to the enactment of the AEA in which “invasion” and “predatory incursion” expressly reference or imply military action. Those sources include dictionary definitions, historical records such as letters, and court decisions. For example: Webster’s Dictionary, Invasion (1828): “particularly, the entrance of a hostile army into a country for purpose of conquest or plunder, or the attack of a military force”; Johnson’s Dictionary, Invasion (1773): “[h]ostile entrance upon the right or possession of another; hostile encroachment,” such as when “William the Conqueror invaded England”; “Small, predatory incursions of the French, though they might occasion great destruction of property, would not be dangerous, and the militia might be sufficient to repel them; but what we have to guard against is an invasion by a powerful army of veterans: and I do not know any body of militia adequate to stop their progress; and a fatal pannic might be the consequence.” Timothy Pickering to Alexander Hamilton (June 9, 1798) (emphasis added). “I am much obliged to your Excellency for your letter of the 10th. of January, giving me an account of the enemy’s incursion into your state. . . . But as the evils you have to apprehend from these predatory incursions are not to be compared with the injury to the common cause and with the danger to your state in particular, from the conquest of those states southward of you, I am persuaded the attention to your imediate safety will not divert you from the measures intended to reinforce the Southern Army and put it in a condition to stop the progress of the enemy in that Quarter.” Letter from George Washington to Thomas Jefferson (Feb. 6, 1781) (emphasis added). Huidekoper’s Lessee v. Douglass, 7 U.S. (3 Cranch) 1, 11 (1805) (explaining that in 1792, “an Indian war existed on [Pennsylvania’s] frontier” and the state population desired to “repel the predatory incursions of the Indians”).

Respondents do not challenge these usages. Instead, they contend that other contemporaneous sources reflect a broader understanding of “invasion,” with no express or implicit military requirement. In support of their construction, however, they provide only two examples, both of them from dictionaries. One authority defines “invasion” as any “hostile entrance.” 1 JOHN ASH, THE NEW AND COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (1775). And A Complete Dictionary of the English Language, a source on which Petitioners also rely, includes “hostile encroachment” as a definition, with no reference to military force. See Invasion, A DICTIONARY OF THE ENGLISH LANGUAGE (1773). Respondents identify no other historical records supporting their proposed meaning of “invasion,” and they offer no sources from the nation’s founding era as to the ordinary meaning of “predatory incursion.”

To augment the parties’ submissions, the Court reviewed numerous historical records using “invasion,” “predatory incursion,” and “incursion” for the period from 1780 through 1820. See Appendix A (identifying records and providing links).9 The review strongly supported the Petitioners’ position. In the significant majority of the records, the use of “invasion” and “predatory incursion” referred to an attack by military forces. This held true even when the historical record did not concern the Revolutionary War or the War of 1812. The usages of “predatory incursion” at times referred to entries by Native Americans into the western territories, as did usages of “incursion.” But even these records refer to an organized group of armed individuals entering an area to attack a fort, settlement, or town, and the writer typically discussed the need for a military response to the entry. In only a few sources did the use of “invasion” or “predatory incursion” reference a non-military action. While the Court does not represent that its review constitutes a vigorous corpus linguistics analysis, the results provide a significant level of confidence that a complete review would generate similar conclusions.

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The historical records that the parties present, supplemented by the additional records that the Court reviewed, demonstrate that at the time of the AEA’s enactment, the plain, ordinary meaning of “invasion” was an entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory. In a similar vein, the common usage of “predatory incursion” and, to a lesser degree, “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. Although other uses exist for these terms, those rare uses do not represent the ordinary meaning of those terms.

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Presidential powers to declare an invasion or predatory incursion are clearly stated in the text of the AEA, and courts have upheld those powers, including the USSC.

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The difference is that there has been no incursion by a foreign government. I know the argument about TDA "being part of the" Venezuelan government, but I think that will fail.

All these illegal aliens are deportable under existing law. Just hire 3,000 Immigration Judges for as long as it takes! Immigration Judges can be hired and fired by the Executive Branch as needed.

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Unless Biden signed an EO saying the border is wide open and everyone can come in without prosecution, he had no “discretion” regarding law.

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You're wrong. The Executive has full discretion in those examples.

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So you think the House and Congress need a written invitation or a gun to their head to do their damn job?

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You don't?

Trump should have a gun to GOP leadership's head and be willing to pull the trigger to get legislation passed that allows us to deport, deport, deport and then end the free flow of illegals across the border.

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All of the ones that aren't unconstitutional.

The text limit of a post on here is far too small to take into account all of those laws on the books.

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So you can't cite what laws were broken? But you sure they were?

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The difference is that there has been no incursion by a foreign government. I know the argument about TDA "being part of the" Venezuelan government, but I think that will fail.

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We'll have to wait and see.....

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Come on Bill.... this topic has been discussed as nauseum here. You know there are other criteria listed in the act besides "being at war", that allow POTUS to enact the law.
Your usually somewhat honest about issues.

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Yup. I was just pointing out that Congress alone has the power to declare war.

I agree declaration of war is NOT a requirement of the AEA.

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The Executive has full discretion in those examples.

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Refresh my memory