AEA Litigation: Enforcing Congress’s Limits on Delegated Power

(Andrew Kent – Lawfare) The Supreme Court’s Feb. 20 decision that struck down President Trump’s tariffs imposed under the International Emergency Economic Powers Act exposed fractured reasoning among the six-justice majority about the correct approach to statutory interpretation. If the Court had one overall message, however, it was that delegations of emergency power to the president should not be treated as invitations for the executive to grossly stretch statutory text to cover actions entirely unimaginable by the Congress that passed the law. If this approach applies beyond the Trump administration’s tariff policy, Trump’s invocation of the Alien Enemies Act (AEA) nearly a year ago should also be declared illegal. The Trump administration’s use of the statute, aimed at alleged members of the Venezuelan criminal organization Tren de Aragua (TdA), has produced consequential litigation now pending before the U.S. Court of Appeals for the Fifth Circuit en banc, in W.M.M. v. Trump. The AEA is being used for the first time since World War II—and for the first time ever apart from declared wars. The Supreme Court frequently directs that statutes be interpreted according to their meaning at the time of enactment. A legal-historical excavation of the AEA’s meaning in 1798, when it passed the Fifth Congress and was signed by President John Adams, is therefore required to answer the questions raised in W.M.M. Because the AEA has been used only infrequently—just in the War of 1812, World War I, and World War II—no comprehensive scholarly analysis of the statute existed before Trump’s invocation in 2025. – AEA Litigation: Enforcing Congress’s Limits on Delegated Power | Lawfare