Trump’s Use of Alien Enemies Act Declared Unlawful From the Get-Go

INSIDE: Charles Breyer ... Lee Zeldin ... JB Pritzker

(Photo by Jesus Vargas/Getty Images)

A lot of things happened. Here are some of the things. This is TPM’s Morning Memo. Sign up for the email version.

5th Circuit Smacks Down Trump on Alien Enemies Act

In the most important court decision on a day full of them, the most conservative federal appeals court became the first to address the substance of President Trump’s invocation of the Alien Enemies Act and found it to be unlawful.

The late-in-the-day Tuesday ruling by the 5th Circuit Court of Appeals torpedoed the premise for Trump’s AEA deportations. On a 2-1 vote, Judges Leslie H. Southwick (Bush II) and Irma Carrillo Ramirez (Biden) found the AEA to be a wartime law not applicable to criminal gangs like Venezuela’s Tren de Aragua. The panel found there was no “invasion” or “predatory incursion” as required by AEA.

Judge Andrew Oldham (Trump) dissented in strong terms, and it’s not at all clear that this decision would stand up if the full 5th Circuit were to re-consider it.

The weekend deportations in March, the defiance of court orders to stop the removals, the incarceration of more than 200 Venezuelan men at CECOT in El Salvador for months — all of it was predicated on an unlawful invocation of the Alien Enemies Act.

Trump Violated Posse Comitatus Act

U.S. District Judge Charles Breyer of San Francisco ruled that President Trump’s use of the National Guard in California in a law enforcement capacity violated the 19th century Posse Comitatus Act.

To be clear, Breyer didn’t find Trump’s big anti-immigration show of force with the National Guard to be unlawful in and of itself. A federalized National Guard can be used to protect federal installations and personnel, Breyer ruled, but it can’t engage in domestic law enforcement activities.

“President Trump and Secretary Hegseth have stated their intention to call National Guard troops into federal service in other cities across the country—including Oakland and San Francisco, here in the Northern District of California—thus creating a national police force with the President as its chief,” Breyer warned.

The California deployment – Trump’s over-the-top response to protests against mass deportation – was full of examples of the National Guard being used as a local police force, Breyer found. He concluded that the Trump administration’s violations of the Posse Comitatus Act were willful and blocked the National Guard from engaging in further law enforcement activity.

Appeals Court Blocks Trump’s Firing of FTC Commissioner

This decision may be short-lived given where the Supreme Court is headed, but the D.C. Circuit Court of Appeals ruled that President Trump did not have the power to unilaterally fire Democrat-appointee Rebecca Kelly Slaughter from the Federal Trade Commission. Relying on existing Supreme Court precedent, the appeals court reinstated her to her position. The problem, of course, is that the Supreme Court has all but overruled its own precedent on independent agencies and is likely to formally overturn it soon.

Through the Looking Glass

A separate D.C. Circuit panel issued a travesty of a ruling in that confounding Environmental Protection Agency grants case which the Trump DOJ has tried but so far has failed to turn into a criminal prosecution.

You’ll recall that this Biden EPA grant program worth $20 billion was the target of wild conspiracies and false accusations from the MAGA right. EPA Administrator Lee Zeldin and the Trump DOJ went after the program aggressively, scaring Citibank into freezing account funds, leaving some EPA contractors high and dry. Then-acting U.S. Attorney Ed Martin kept pursuing the case, reportedly using grand juries outside of D.C. after the senior career prosecutor overseeing the criminal division of his office was forced out for refusing to play along in the case.

The Trump appointees on the panel — Judges Neomi Rao and Gregory Katsas — bought the conspiracizing and false accusations hook, line and sinker, and cleared the way for the EPA to claw back the billions of dollars in funding, as Politico witheringly noted:

The court seemed especially taken with the “gold bars” video cited regularly by Zeldin — an undercover recording of an EPA staffer last December who colorfully described the Biden administration’s rush to obligate additional grants under the IRA before the Trump administration took power. That staffer and other Biden officials have said he was referring to other grant programs, not the GGRF, which the IRA required to have been obligated by September 2024.

Obama appointee Nina Pillard found herself once again in dissent:

“The agency has no lawful basis — nor even a nonfrivolous assertion of any basis — to interfere with funding that, pursuant to Congress’s instructions, already belongs to Plaintiffs, who in turn have committed it to energy infrastructure development and advanced manufacturing projects according to Congress’s plan.”

It’s truly an egregious decision that validates (i) an administration disinformation campaign; (ii) a prosecutorial witch hunt; and (iii) a muscular executive branch that can ignore Congress and the funding laws it passes.

The price for having two Trump appointees on the motions panel back in March, when this case first arose, continues to be steep. The full D.C. Circuit will likely be asked to re-consider this case.

Sign of the Times

An earnest 84-year-old Reagan appointee to the federal bench seemed stunned and saddened after he was preposterously scolded last month by Justices Brett Kavanaugh and Neil Gorsuch for allegedly ignoring Supreme Court precedent on its emergency docket.

The public thrashing by the justices for a failure to properly divine the inscrutable meaning of barely explained emergency docket decisions has been called out by commentators. But it still left U.S. District Judge William Young of Boston to try to pick up the pieces of the National Institutes of Health funding case. He issued a pained apology from the bench Tuesday:

Before we do anything, I really feel it’s incumbent upon me to — on the record here — to apologize to Justices Gorsuch and Kavanaugh if they think that anything this court has done has been done in defiance of a precedential action of the Supreme Court of the United States. I can do nothing more than to say as honestly as I can: I certainly did not so intend, and that is foreign in every respect to the nature of how I have conducted myself as a judicial officer.

The Retribution: Mail-In Voting Edition

In another episode of bald and unequivocal retaliation, President Trump announced Tuesday that he was relocating the headquarters of U.S. Space Command to Alabama from Colorado to punish it for … having mail-in voting:

Big Trouble Brewing in Illinois?

Illinois Gov. JB Pritzker (D) warned in alarming tones Tuesday that the Texas National Guard was being deployed to a Navy base his state in preparation for what would amount to an unwelcome invasion by a fellow sovereign state.

The move would be different from Trump’s deployment of the National Guard in D.C. (not a state) and in California (where he federalized it in accordance with the law). To engage in law enforcement activities and get around the Posse Comitatus Act problem that we already discussed above, the National Guard would have to remain unfederalized. That’s what makes this such an unusual situation.

Later in the day, a spokesman for Texas Gov. Greg Abbott (R) denied that he was planning to deploy the Texas National Guard to Illinois. As we wait to see if this plays out, Georgetown law professor Steve Vladeck surveys the legal landscape implicated by this particular scenario.

IMPORTANT

In a legally dubious and regionally destabilizing attack, the United States took offensive military action against an alleged cartel motorboat in international waters off Venezuela. Eleven people were reportedly killed in the aerial attack on the marine vessel.

The move comes after the Trump administration set in motion certain legal implications earlier this year by dubbing narco-cartels as terrorist organizations.

“The action comes amid a major buildup of U.S. naval forces outside Venezuela’s waters, the NYT reports. “The administration has also stepped up belligerent rhetoric about fighting drug cartels and labeled Venezuela’s president, Nicolás Maduro, a terrorist cartel leader.”

The paradigm shift from treating drug trafficking as a law enforcement problem to a military target will have far-reaching and lasting consequences for the rule of law at home and abroad. Drug trafficking alone is not a capital offense, but the U.S. military is now summarily executing suspected drug traffickers on the high seas.

Quote of the Day

“If you often feel at a loss for words right now, that’s understandable. Significant new elements are in play, along with classic autocratic tactics. The sabotage of America by a sitting U.S. president is a tragic and history-making innovation.”–NYU history professor Ruth Ben-Ghiat

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