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Notes -
I think that is a very pale reading of the case.
V-E day already occurred! There was a cease fire and surrender! Men kissed nurses on the streets of NY! The war was over. Nobody but nobody in 1949 was talking about the on going war effort. If you look at the history books, they will tell you the war ended in 1945.
There was a real question of whether the president could years after hostilities ended deport someone under the AEA. After all, the obvious reason for the act was to protect the homeland against a fifth column of sorts and in 1949 no one was concerned about that.
Despite all of that, the court said “we will not review the president’s claim.” That is very deferential.
Indeed Trump’s actions are clearly more within the ambit of what the AEA was worried about (ie foreign actor exerting physical control / damage to the homeland) compared to the post WWII fact pattern of precedent.
Could you point to the technicalities and say Ludecke is not controlling? Sure. But if you take that case seriously, then it is hard to argue the president doesn’t have the power to declare an invasion in this case.
I do agree the class question is trickier.
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