The Affliction Of The Arrogance Of Judicial Supremacy Does Not Care About The President Who Appointed The Judge

When 99% of your decisions are final because they never get appealed, the mindset that can develop looks past the question of whether you should be making the decision at all.

Don’t misconstrue my use of the term “arrogance” — it is not necessarily a hubristic exercise. I use it instead as a form of the word term “arrogate,” defined as to take or claim something without justification. “Arrogate” is a verb describing an action, where “arrogance” is a noun describing an attitude. But both apply to a district judge who knowingly and willfully takes on the responsibility for making a decision that the Constitution vests in another.

On May 1, 2025, District Judge Fernando Rodriguez, Jr., a Trump appointee in the Southern District of Texas, arrogated to himself the authority to make a decision disagreeing with President Trump’s issuance of a Proclamation invoking the Alien Enemies Act. That invocation established a legal framework for the removal from the United States of specified “alien enemies” —declared by the President as Venezuelan citizens over the age of 14 who are members of the Tren de Aragua (TdA) criminal gang allowed into the United States by the Biden Administration.

Judge Rodriguez’s Injunction does not concern a lack of due process or what the Government is required to prove to an immigration judge about the person sought to be removed. He first defined some of the key words and phrases in the AEA, and then determined that the very invocation of the AEA by President Trump is “ultra vires” — beyond the President’s authority based on the justifications set forth in the Proclamation by the President.

Let me be clear about something that Judge Rodriguez did not do. He did not issue a nationwide injunction against use of the AEA, his injunction is limited to the physical jurisdiction of the federal district where he sits — the Southern District of Texas. He granted a motion for class certification, but the class is limited to individuals subject to the Proclamation who are brought into the Southern District of Texas. But even limited in this fashion, the injunction effectively halts the use of the AEA to remove TdA members to El Salvador or any other third country from DHS facilities in Texas, and would create a political firestorm if the Administration simply shifted the operation to another federal judicial district.

Before I get to portion of Judge Rodriguez’s 34 page opinion declaring the invocation of the Act to be unlawful — in his view — let’s first revisit the words of the now quite controversial Judge Boasberg from the March 15 hearing on the very first challenge to the invocation of the Alien Enemies Act to remove TdA members to El Salvador, p. 27:

“And there are really sort of two issues on this. The first is does the political question doctrine or other -- or do other prudential considerations bar judicial scrutiny of the proclamation in the first place, and second, if they do not bar such scrutiny, is the proclamation illegal?

I think that the first question is harder than the second… I'm well aware of the president's broad authority to apprehend, restrain, and remove noncitizens deemed alien enemies.

For example, the president has unreviewable authority to determine whether a state of war actually exists, and if so, to remove enemy aliens in the manner he wishes.

So the question is does such authority extend to other determinations within the statute such as invasion or predatory incursion or foreign nation or government….

[R]ead broadly, Ludecke certainly supports you, and certainly even read narrowly, I understand the courts can't question the president's power to remove enemy aliens or even his determination that a state of war continues to exist, but it did seem to accept that courts could hear challenges to the construction and validity of the statute and in that case challenges raising whether the person restrained is, in fact, an enemy alien 14 years of age or older.

So read more narrowly, why doesn't it leave open the question that judicial review is available to look at whether certain preconditions have been met for the president to invoke the statute?

Judge Boasberg recognized there are aspects of the invocation of the Alien Enemies Act by the issuance of a Presidential Proclamation that are beyond the scope of the judicial branch’s authority to review. The reference to the Supreme Court’s Ludecke decision in 1948 goes to the holding in that case that any person claimed to be subject to an AEA proclamation must be give an opportunity to demonstrate the contrary is true. With regard to President Trump’s invocation of the AEA, the questions would be 1) is the person i a Venezuelan citizen, 2) is the person over 14 years of age, or 3) is the person a member of TdA?

But answering “yes” to the question he posed at in the last paragraph of the passage quoted above plagues both his decision-making and that of Judge Rodriguez: exercising judicial review over the presidential determination that the necessary preconditions for invocation of the AEA exist.

The Supreme Court made reference to this in its very short order vacating Judge Boasberg’s TRO:

Challenges to removal under the AEA, a statute which largely “‘preclude[s] judicial review,’” Ludecke v. Watkins, 335 U. S. 160, 163−164, (1948), must be brought in habeas.

But, as noted in more detail below, the Supreme Court said more than just this in Ludecke.

Turning now to Judge Rodriguez’s decision invalidating President Trump’s invocation of the TRO — against the backdrop of the Supreme Court reiterating its earlier decision from nearly 80 years ago that the AEA “largely precludes judicial review — we find this declaration by Judge Rodriguez at page 15:

[T]he Court retains the authority to construe the AEA’s terms and determine whether the announced basis for the Proclamation properly invokes the statute.

Maybe there should be an office set up in the White House for rotating district judges to review and approve the anticipated “announced basis” for executive actions before they are allowed to go into effect.

Within the Opinion Judge Rodriguez employs a bit of “sleight of hand” by engaging in a kind of factual evaluation that he disclaims the authority or intention to engage in earlier in the Opinion. Let’s first consider the disclaimers of at pages 17-19 of the Opinion— I’ve separated them out in “serial” fashion and deleted the citations to case authority for purposes of brevity:

It is true that the Constitution ascribes authority and responsibility for foreign policy and national security to the Legislative and Executive branches.

“[M]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.”….

[C]onstruing the language of the AEA does not require courts to adjudicate the wisdom of the President’s foreign policy and national security decisions.

Determining what conduct constitutes an “invasion” or “predatory incursion” for purposes of the AEA is distinct from ascertaining whether such events have in fact occurred or are being threatened. The former turns on applying accepted principles of statutory construction; the latter on analyzing factual intelligence and data, including some to which the Executive Branch possesses unique access, and applying independent judgment and weighing competing priorities. Courts routinely engage in the former, but are ill-equipped to second guess the President’s decisions as to the latter.

This distinction also refutes Respondents’ contention that applying judicial review would rely on “no manageable standards.” On the contrary, courts regularly apply known canons of construction to determine the meaning of statutory language.

On the other hand, some issues that Petitioners raise present a political question beyond judicial review. Once a court defines the parameters of what conduct constitutes an “invasion” or “predatory incursion” for purposes of the AEA, the court leaves to the Executive Branch the determination of whether such conduct has been perpetrated, attempted, or threatened….

The court having determined the meaning of these terms, it is left to the Executive Branch to determine whether a foreign nation or government has threatened or perpetrated activity that includes such an entry.

[T]he court may not delve into whether the Executive Branch possesses sufficient support for its conclusion, or whether the court agrees with the Executive Branch’s determinations. That analysis would require the Executive Branch to disclose to the court the domestic and foreign intelligence that undergirds the finding of an actual or threatened invasion or predatory incursion.

[R]equiring the Executive Branch to do so would run counter to the admonition that “it is inconceivable that before an alien enemy could be removed from the territory of this country in time of war, the President should be compelled to spread upon the public record in a judicial proceeding the method by which the Government may detect enemy activity within our borders[.]”

“[T]he evidence upon which the President might decide that there is imminent danger of invasion [for purposes of the Militia Act of 1795], might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperiously demand to be kept in concealment.”

Thus, in the present case, while the Court will construe the meaning of the AEA’s language, the Court declines to consider Petitioner’s argument that “the Proclamation’s conclusory ‘findings[]’ [regarding Venezuela and TdA] . . . cannot survive even the most minimally searching inquiry because they are simply incorrect as a factual matter.

While setting forth the humble concessions that there are some issues that must be left to the political branches, in the next two paragraphs Judge Rodriguez does exactly what he claimed he would not do:

[T]he Court concludes that a Presidential declaration invoking the AEA must include sufficient factual statements… 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.

Well — which is it?

Courts … are ill-equipped to second guess the President’s decisions…

or …

…. [set forth facts that] enable a court to determine whether the alleged conduct satisfies the conditions that support the invocation of the statute.

… because it can’t be both.

A Court cannot and should not know everything the Executive might know because some of that comes from “analyzing factual intelligence and data, including some to which the Executive Branch possesses unique access …”

but…

A Court can decide when the “declaration invoking the AEA” doesn’t say enough??

There is no language in the text of he AEA — nor does the district court point to any — that sets forth a standard for what quantum of “factual statements” must be included by a President in a “declaration invoking the AEA” in order to satisfy the inquiring mind of a district judge. The text of the pertinent section of the AEA reads:

“Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event …

A “public proclamation of the event” — that is all that is required. Judge Rodriguez ADDS to the statute the requirement that such proclamation MUST — his word — “include sufficient factual statements … to enable a court to determine …”

I ended the preceding quote mid-sentence because the statute gives the court nothing to determine. Judge Rodriguez arrogated to himself a power “to determine” whatever it is he deemed too important to be left to the Executive — which is where Congress left it.

So rather than leaving it to the President to determine if an “invasion” or “predatory incursion” has occurred, the statute gets rewritten to read — by implication — “and the President makes public proclamation of the event and every sitting federal judge agrees that is the case.”

What happened to the disclaimer above that the “court leaves to the Executive Branch the determination of whether such conduct has been perpetrated, attempted, or threatened”?

What about the promise of not “analyzing factual intelligence and data, including some to which the Executive Branch possesses unique access” and not “applying independent judgment and weighing competing priorities” in the manner that the Executive Branch does?

How is deciding whether the “declaration invoking the AEA… include[s] sufficient factual statements that enable[s] a court to determine whether the alleged conduct satisfies the conditions that support the invocation of the statute” any thing other than a “searching inquiry” to determine whether the declaration is “incorrect as a factual matter” — the exact task he said he would not undertake.

The only way to make a decision that the declaration includes “insufficient facts” is to conduct an “inquiry” — “searching” or otherwise — into whether the declaration is “incorrect as a factual matter.”

Judge Rodriguez justifies making his independent determination without providing the evidentiary standard he used.

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.

Strip the courts of their “traditional role”? Since when does the interplay between three co-equal branches of the federal government operate on “tradition”?

At the crux of the constitutional dispute here is a key question that infects much of the disagreement between the Trump Administration and the judiciary — to what extent should the Judiciary recognize and respect the obligation and authority of the President to interpret statutory terms? Where Judge Rodriguez parts ways with the Administration is with regard to the meaning of “invasion” and/or “predatory incursion.”

Before going down the path of defining the terms in the AEA, Judge Rodriguez goes through the standard judicial explanation for how statutory language is deciphered — particularly language drafted hundreds of years ago such as that found in the 1798 statute. Again, the following quote has citations to authority removed for purposes of brevity:

Courts normally interpret statutory terms consistent with their ordinary meaning at the time Congress enacted the statute.

When ascertaining the plain, ordinary meaning of statutory language that harkens back to the nation’s founding era, courts rely on contemporaneous dictionary definitions and historical records that reveal the common usage of the terms at issue.

While most English words have multiple dictionary meanings, courts use the ordinary meaning of terms unless context requires a different result.

At times, terms can hold more than one ordinary meaning.

Reviewing courts, however, apply the contextually appropriate ordinary meaning, unless there is reason to think otherwise.

Following this quoted passage, Judge Rodriguez takes nearly 2 1/2 pages to explain “canons of statutory construction” that aid courts in understanding the meaning of words and phrases used in statutes at the time they were written — all in service of interpreting “invasion” and “predatory incursion.”

Recall above that I noted that there Ludecke case had more to say on the subject of the AEA largely “preclud[ing] judicial review,” which was echoed by the Supreme Court again when vacating Judge Boasberg’s TRO. The additional cautions by the Court in Ludecke address this very issue:

[The AEA’s] … terms, purpose, and construction leave no doubt. 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.

But Judge Rodriguez did exactly this — he resolves the dispute between the parties over the meaning of the AEA’s words or phrases (80 years ago the Court said the “language … could hardly be made clearer”) via a “Battle of Dictionaries” from the period in question, aided by “numerous historical records” that used the terms in the statute.

In the significant majority of the records, the use of “invasion” and“predatory incursion” referred to an attack by military forces. 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.

This approach ignores the passage in Ludecke that follows the sentenced referring to the AEA as largely “preclud[ing] judicial review” where the Supreme Court said:

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.

Judge Rodriguez then turned to “passing judgment” on President Trump’s Proclamation invoking the AEA and the exercise of his discretion.

Having determined the meaning of the relevant statutory terms, the Court considers whether as a matter of law, the Proclamation exceeded the statutory boundaries that the AEA establishes. The Court concludes that it did.

Judge Rodriguez then goes through the various factual statements set forth in the Proclamation concerning Venezuela and the Maduro government, the political and operational relationship of them to the TdA, TdA’s “immigration”into the United States, and the criminal conduct of the TdA members after illegally entering the United States.

He finds the content of the Proclamation not to be false or inaccurate, but instead that the content is insufficient to invoke the provisions of the AEA.

Based on the plain, ordinary meaning of those terms in the late 1790’s, the Court concludes that the factual statements do not. The Proclamation makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation. Thus, the Proclamation’s language cannot be read as describing conduct that falls within the meaning of “invasion” for purposes of the AEA.

He then turns his attention to the “predatory incursion” provision and makes a similar finding with regard to there being an insufficient factual basis for invoking the statute based on his view of the meaning of that phrase 225 years ago.

There is no provision in the language of the AEA passed by Congress that the requires the “proclamation” of the event to set forth any factual basis meeting any particular “standard of proof” sufficient to satisfy federal judges. The President made a “proclamation” that an “event” pursuant to the statute had occurred. That is all that is required.

Judge Rodriguez adds to the statute that the President’s proclamation must include sufficient facts “to enable a court to determine” something — the statute is silent. He pronounces that the President cannot “summarily” invoke the statute — notwithstanding the fact that the statute says exactly that. This arrogation of authority to countermand the Executive where Congress has given the power expressly to the Executive actually usurps the power of Congress.

If the Presidential proclamation is insufficient, or the President acts in bad faith to pursue an ultra vires course of action for some illicit purpose or benefit, Congress has the power to bring Articles of Impeachment based on the abuse of the powers conferred by Congress on the Executive.

The failure to do so should be seen as an acquiescence by Congress that the President has properly invoked the AEA and exercised the discretion that Congress intended to give.

What Judge Rodriguez has done is amend the words of the statute by implication, and then invalidated the President’s invocation of the statute’s powers due to the President’s failure to comply with the requirements necessitated by the amendment.

The implications of the district judge’s extraordinary action was accurately described by following comment left in an X post:

Judge Rodriguez’s implied amendment to the AEA gives every Article III district judge supervisory power over the exercise of Presidential authority expressly delegated by Congress to the President.