How Trump Uses Dormant Laws to Amass Power

The president’s plan to revive a moribund court for war privateering is a lesson to Congress to clear some outdated measures off the books.

Congress has spent the last two centuries passing laws. These laws often remain on the books, so to speak, long after their purpose has been fulfilled until lawmakers repeal them. Occasionally the Trump administration finds something buried within this back catalogue that it can wield for its own purposes—and to no good end.

This summer, for example, the Trump administration has moved to revive two different courts that are authorized by Congress but have laid moribund for decades or even centuries. One of them is the Alien Terrorist Removal Court, or ATRC, which the Justice Department plans to use to deport certain applicable immigrants in classified settings. The pending ATRC case will be the first one ever heard by that court since Congress permitted its creation in a 1996 anti-terrorism law.

Earlier this week, the department also began moving towards reviving prize courts, which allow the U.S. government to seize foreign vessels captured during war—more specifically, any Iranian oil tankers captured during the ongoing illegal war with Iran. Under federal law, these prize courts operate within the existing federal district courts to hear cases on the legality of a ship’s capture and pave the way for the vessel’s eventual sale, as well as the sale of any goods on board.

The Trump administration’s enthusiasm for reviving moribund laws to accomplish its policy goals should inspire Congress to consider repealing or revising them. Trump and his allies have inflicted plenty of harm through violating federal laws during his second term. Another important problem is when he abuses and misuses existing laws. If Congress is interested in restoring its own primacy in our constitutional order, it should reconsider its own past missteps as well.

Both of the court revivals illustrate the problem. While federal law authorizes the use of prize courts, they have not meaningfully existed since the Civil War. The Union Navy blockaded Southern ports throughout the war and seized military and civilian vessels alike. Once captured, the ships were typically brought to Union-held ports for disposal by prize courts. In 1863, the Supreme Court rejected legal challenges to the Southern blockade and upheld President Abraham Lincoln’s authority to seize and sell ships and goods acquired from it.

As Bloomberg noted when it reported on the prize courts’ revival earlier this week, the courts fell into disuse after the Spanish-American War ended in 1900 and were moribund after World War II. They reflect a 19th-century understanding of naval warfare where........

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