DOJ Tests National Security Defense in Fight for Trump Agenda

The Trump administration is testing the deference the judiciary typically gives presidents in matters of national security and foreign affairs as it defends aggressive immigration, trade and economic policies.

Administration lawyers have repeatedly invoked President Donald Trump’s broad authority over national security to justify many of his early actions, including his invocation of an emergency law to issue global tariffs.

Lower court judges have expressed skepticism about the breadth of the administration’s executive power claims. And even though the Supreme Court has been open to such arguments in recent years, Trump is testing its limits, legal experts say.

“On the one hand, the Supreme Court has been very deferential to claims of national security,” said Shirin Sinnar, a Stanford Law School professor. “At the same time, the Trump administration is stretching understandings of national security and foreign policy beyond what previous administrations have done.”

“This is not something that’s a foregone conclusion,” she added.

The Court of International Trade last week ruled that Trump illegally invoked an emergency law to unilaterally issue most of his tariffs, with a Washington federal trial court issuing a similar ruling a day later.

Trump cited US trade deficits and drug trafficking at the border as economic and national security threats justifying sweeping tariffs, and the Justice Department cited courts’ being “extremely deferential in areas of national security and foreign policy” to defend the legality of the administration’s move.

Trump won a brief reprieve after a federal appeals court put the trade court’s decision on hold while considering an appeal. But the White House signaled it wants the Supreme Court to weigh in.

“America cannot function” if an administration has its “sensitive diplomatic or trade negotiations railroaded by activist judges,” White House Press Secretary Karoline Leavitt said. “Ultimately, the Supreme Court must put an end to this for the sake of our Constitution and our country.”

‘Every Legal Tool’

The fight over Trump’s emergency tariffs comes as his administration cites a range of legal authorities to help make good on his promise of cracking down on crime and illegal immigration.

In March, he invoked the Alien Enemies Act, a 1798 law designed for use in wartime, in an attempt to fast-track the deportation of alleged members of a Venezuelan gang now designated a terrorist organization to a prison in El Salvador.

Citing foreign policy interests, the administration has also sought to revoke the visas of multiple international students speaking out about the Israel-Hamas war.

The approach places immigration squarely in the “national security bucket” and demonstrates the administration’s plans to use “every legal tool they think they have available to them,” said Carrie Cordero, general counsel at the Center for a New American Security and former DOJ national security attorney.

That has produced skepticism from some federal judges, such as in the case of Kilmar Abrego Garcia, a Maryland resident the US has admitted was wrongly deported to El Salvador.

US District Judge Paula Xinis ordered the administration to facilitate Garcia’s return, and his lawyers have since pushed for records on what steps it has taken, including it discussions with Salvadoran leaders.

The Justice Department, however, has said that state secrets and deliberative process privileges bars it from answering certain questions, citing a statement from Secretary of State Marco Rubio that disclosure would harm US national security interests.

“What about national security is at issue? This is basically take my word for it,” Xinis told a Justice Department attorney during a May 16 hearing, before ordering the DOJ to provide a fuller explanation on why it must withhold information.

‘Open Question’

During the first Trump administration, the Supreme Court upheld the president’s travel ban from seven countries, five of them predominantly Muslim, with a majority opinion noting its review of national-security matters must be limited.

The second Trump administration has been even more “aggressive about invoking state secrets and privilege and national-security rationales,” said Emily Chertoff, a Georgetown University law professor.

But while courts have generally assigned good faith to those justifications without much scrutiny, the rate at which this administration is making them could test that, with potential implications for Trump and future administrations, Chertoff said.

“As the administration invokes this over and over again, are courts going to treat these arguments like the kind of game-ending assertions that they have been?” she asked. “That’s a real open question.”

Along with those defenses, the Justice Department has also regularly claimed its actions represent a political judgment that courts can’t second-guess.

The claim stems from a doctrine that says some disputes are so “inherently political” that judges shouldn’t question them, said Xiao Wang, a University of Virginia law professor. The high court has rarely invoked the principle, yet it’s become a “primary, first-line” argument early in this administration, he added.

Supreme Court

A divided Supreme Court in early April allowed Trump to use the Alien Enemies Act in his effort to deport alleged Venezuelan gang members, though it has said detainees must be afforded adequate notice of their removal and be able to challenge their deportation through what’s known as habeas corpus.

The court has not ruled on the merits of Trump’s invocation of a wartime law on national security grounds, but litigation over that issue is continuing in lower courts.

The Supreme Court weighed in again on an immigration matter May 30, undoing a lower court order that paused Trump’s stripping of legal status for more than 500,000 migrants as it hears a legal challenge. DHS argued the order prevented it from executing on its immigration and foreign-policy objectives.

The Justice Department that same week asked the Supreme Court to intervene again in a case tied to what’s known as third-country removals.

An order requiring the government to give individuals 10 days notice and an opportunity to object before they are deported usurps Trump’s authority over immigration and is disrupting “sensitive diplomatic, foreign-policy, and national-security efforts,” Solicitor General John Sauer argued.