Much has been written about the Alien Enemies Act. We discussed its provisions previously. While the law itself is controversial, it has been upheld by Courts throughout its existence. Here, we consider the Supreme Court case of Ludecke v. Watkins, the last time a deportation under the Alien Enemies Act was challenged in the Supreme Court.
Kurt Ludecke, a German alien, was arrested on December 8, 1941, the day after Pearl Harbor. A hearing was held before an Enemy Hearing Board on January 16, 1942. The Attorney General subsequently issues an order for Ludecke to be detained. Germany surrendered to Allied forces on May 8, 1945. On July 14, 1945, President Truman ordered the Attorney General to deport any enemy alien who was dangerous to the public peace and safety. The Attorney General ordered Ludecke’s deportation on January 18, 1946 . A trial court denied Ludecke a writ of habeas corpus to challenge his detention. A Circuit Court of Appeals upheld that ruling.
Ludecke v Watkins
Justice Frankfurter delivered the opinion of the Court. The case resulted in a split (5-4) decision with Justices Black, Douglas, Murphy, and Rutledge dissenting.
The Court recognized a number of questions to answer for this case.
- Are actions taken under the Alien Enemies Act subject to judicial review?
- Since hostilities ceased before the Attorney General ordered Mr. Ludecke’s deportation, was there an actual war justifying the invocation of the Alien Enemies Act?
- Does the Alien Enemies Act violate the Bill of Rights?
Is Judicial Review Appropriate under the Alien Enemies Act?
The Court immediately notes that Congress has “recognized” that some actions under certain statutes are not subject to judicial review. This means that the courts role is limited to questions of “interpretation and constitutionality” of the law. The legislative purpose of the writers of the Alien Enemies Act leaves no doubt, in the eyes of the Court.
The language employed by the Fifth Congress could hardly be made clearer, or be rendered doubtful, by the incomplete and not always dependable accounts we have of debates in the early years of Congress.
Justice Frankfurter continues
The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons,” Marshall, C.J., in Brown v. United States, 8 Cranch 110, 126, “appears to me to be as unlimited as the legislature could make it.” Washington, J., in Lockington v. Smith, 15 Fed. Cas. No. 8448 at p. 760. The very nature of the President’s power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. This view was expressed by Mr. Justice Iredell shortly after the Act was passed, Case of Fries, 9 Fed. Cas. No. 5126, and every judge before whom the question has since come has held that the statute barred judicial review.’ We would so read the Act if it came before us without the impressive gloss of history.
In short, all previous litigation on the law held that the actions of the President to have an enemy alien removed were not subject to review, nor was his determination that the person should be removed.
On the first question before the Court, the Court found that the determinations by the President, or his appointee (in this case, the Attorney General), were not subject to judicial review. Further, the determination to remove the person was not subject to judicial review.
Was the Presidential Power limited by the Cessation of Hostilities?
The Court has a rather common sense opening statement on this question.
And so we reach the claim that while the President had summary power under the Act, it did not survive cessation of actual hostilities. This claim in effect nullifies the power to deport alien enemies, for such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war.
How, indeed, the Court asks, could enemy aliens be deported if we were in the midst of a war with the country to which we wanted to deport them? Just as a declaration of war is a political act, so is the termination of a war. Whether by treaty, proclamation, or legislation, the finding that a war is over is one exclusively for the political branches.
It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilites do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.
The Court is reinforcing the notion that there are political questions here that must be answered by the political branches of government. They are not appropriate territory for the judiciary to enter.
Does the Alien Enemies Act violate the Bill of Rights?
Writing for the Court, Justice Frankfurter finds
no defect in the Act because resort to the courts may be had only’ to challenge the construction and validity of the statute and to question the existence of the “declared war,” as has been done in this case. The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.
This appeal to the age of the Alien Enemies Act has some merit. It suggests that those in the founding era when the Bill of Rights were enacted had some sense for protecting the Bill of Rights and therefore would not have allowed a statute to be passed that undermines it.
Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined.
Justice Frankfurter concludes the Court’s opinion as follows.
Accordingly, we hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it-on the President of the United States. The Founders in their wisdom made him not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war. Such a page of history is Worth more than a volume of rhetoric.
Conclusion
President Trump has invoked the Alien Enemies Act to deport members of the multinational gang Tren de Aragua. We previously discussed the content of the Alien Enemies Act and noted the three different triggering events for invoking the law. These are
- Declared war
- An invasion, including attempts and threats, by any foreign nation or government
- A predatory incursion, including attempts and threats, by any foreign nation or government
In the latter two instances, the law vests the President with declaring that the event exists. The Court’s discussion of whether or not a declared war existed at the time Mr. Ludecke was being deported ultimately concluded that it was a political question not subject to judicial review. Because of this, it seems unlikely, and perhaps impossible, for the Court to both retain all of the existing precedent concerning this law and decide that it can review whether or not there has been a predatory incursion.
Likewise, the Court could not claim that there are problems with the exercise of Presidential power to determine by executive processes who to deport without setting aside existing precedent.
Ultimately, we conclude that President Trump’s actions would be upheld by the Supreme Court unless the Court were to choose to walk away from its Ludecke decision.