Judge Millet used the decision to support her argument that the government cannot sidestep judicial review of its use of the AEA by claiming sole interpretative authority for when the AEA’s preconditions are triggered.
Like Judge Henderson, Millet’s argument about the scope of review under the AEA seems to depend on her view that it is the job of courts to interpret statutory terms, even when those terms are found in statutes implicating core Article II authority. On her view, insofar as statutory language can be construed without reference to political judgments, the political-question doctrine does not apply. Thus, again citing Loper Bright, Judge Millet insists the AEA’s phrases “invasion,” “predatory incursion,” and “foreign nation or government” are all “objectively discernable from statutory text and context,” and present an question of interpretation rather than presidential discretion. “The judiciary can resolve this disagreement with settled tools of statutory construction,” she writes.
