In a ruling that was both surprising and remarkably unsurprising, Southern District of Texas Judge Fernando Rodriguez Jr. issued a permanent injunction barring the removal of people under the Alien Enemies Act. It was surprising only because Judge Rodriguez was appointed by Trump, and for those on both right and left who believe that judges are mere political hacks for their patron, Judge Rodriguez proved that at least some in the judiciary remain dedicated to the fair and impartial rule of law.

It was remarkably unsurprising because Trump’s invocation of the AEA was a parlor trick, a gimmick that he believed would allow him to circumvent the rule of law and do as he pleased. There was never any serious doubt that Trump’s Executive Order was just another exercise of Trumpian nonsense. And Judge Rodriguez called it fair and square.

“The question that this lawsuit presents is whether the President can utilize a specific statute, the AEA, to detain and remove Venezuelan aliens who are members of TdA,” Rodriguez wrote. “As to that question, the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms. As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class, or to remove them from the country.”

In other words, the AEA is limited to actual invasions, and the machinations to pretend that Tren de Aragua was somehow an invading army of Venezuela weren’t going to cut it.

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….

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….

In other words, the AEA’s authority requires an actual military invasion, not a claim cobbled together piecemeal in an attempt to manufacture an invasion where there was none.

This ruling follows similar decisions by a federal district court in Colorado, and Judge Henderson of DC Circuit, all of which also rejected the “political question” argument and held that, in the AEA, “invasion” and “predatory incursion” refer to armed attacks. Multiple earlier court decisions have reached the same conclusion with respect to the meaning of “invasion” in the Constitution. There is a growing consensus on this question among both liberal and conservative judges. The Colorado decision was issued by a liberal Biden appointee. But Henderson and Rodriguez are both conservative Republican appointees. So far, Judge James Ho of the Fifth Circuit is the sole judicial dissenter on the meaning of “invasion.”

The decision will be appealed to the very conservative Fifth Circuit Court of Appeals, which could well be as deferential to Trump as any circuit in the nation. But there is another gap through which Trump could try to sneak his power grab.

There is one potentially significant flaw in Judge Rodriguez’s analysis. While he concludes that the meaning of “invasion” is not a “political question,” he argues that the factual determination of whether an “invasion” exists is. So far, the Trump Administration has not claimed there is an armed attack on the US conducted by a foreign nation or government, and thus he rules against them.  But if Trump – or a future president – were willing to lie about this issue, and falsely assert there is such an armed attack, Judge Rodriguez would presumably defer.

Ilya Somin explains:

Making determinations about relevant facts is a standard function of the judiciary. If the law says the government is allowed to do X whenever Y occurs, courts must make a determination on whether Y has actually happened or not. Otherwise, the government could do X anytime it wants.

What if Trump were to declare that the United States is being invaded by Venezuela? So what if there is no actual army trying to march across our border. So what if the facts don’t exist anywhere outside Trump’s head? If the president were to say so, then the invocation of the AEA would be within the authority granted by the statute, together with the authority it confers on the president to take actions he could not otherwise take. But what if it was just a blatant lie for the sake of assuming powers Congress never authorized but for wartime.

Farfetched? After all, what president would shamelessly lie through his teeth to invoke authority he shouldn’t possess simply because he wants the power and has no qualms about lying if it serves his ends? It’s not as if anyone in the Trump administration would ever lie about such things, right?

To the extent that the Constitution and law presume that the president will not merely honor the Constitution, but remain modestly faithful to truth, facts and reality, it doesn’t anticipate the election of someone so shamelessly amoral that lies are just another weapon in his arsenal. Yet here we are.