The issue is the deportation of the Venezuelan gangbangers under the Alien Enemies Act of 1798. The Times quotes many people who are very upset that the district judge who issued an order wasn't obeyed. The Supreme Court, however, has already issued a ruling on this very subject. It begins:
1. The Alien Enemies Act precludes judicial review of the removal order.
So that's it.
I admit to not liking that the Salvadoran prison these people were sent to apparently exists to do things that would violate the Eighth Amendment. I don't think the US Government should ever be allowed to violate the Constitution by getting someone else to do it for them, neither a private company nor a foreign government. This holds especially for violations of the Bill of Rights. The Declaration of Independence states definitely, and correctly, that the sole justification for establishing this or any government is to protect the natural rights of the people. They should never be in the business of looking for work-arounds to that.
That said, these aren't members of 'the people,' weren't here in accord with our laws, and have no claim to belong here. They aren't refugees, but the people that refugees were fleeing who followed them here to continue to dominate and exploit them. Their claim to the protection of the laws is only as good as the Devil's in the famous quote from A Man for All Seasons: just because we have to set strong guards against the government getting out of hand.
In any case, the highest court in the land has already ruled on this issue. You can challenge whether there is a real state of war or invasion in court; you can't review the removal order.
12 comments:
I completely agree that the government should not be able to get others to do things it cannot.
However, I also think our 21st century idea of "cruel and unusual" might seem somewhat luxurious compared to the late 18th century America when the 8th Amendment was ratified. I'm not advocating adopting El Salvador's standards, but maybe reconsidering what counts as cruel and unusual in the American context should be part of prison reform.
The Chrome extension on the actually-relevant 1948 Supreme Court Ruling makes the link inaccessible for me. Don't ask me why. Removing the Chrome Extension for actually-relevant 1948 Supreme Court Ruling makes the link accessible for me. Don't ask me why. :)
Grim, how did you find this 1948 ruling?
Sean Davis of the Federalist has been talking about it for a couple of days. He's part of the general conversation on Twitter/X, so everyone who is writing professionally about the issue should be aware of it. I'm surprised -- well, not really -- to see that the NYT is just pretending it doesn't exist.
Couple things on this.
First, as Frankfurter wrote for the Court,
Accordingly, we hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it—on the President of the United States. The Founders in their wisdom made him not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war.
Second, 1. The Alien Enemies Act precludes judicial review of the removal order.
So that's it.
No, that's not it, or so it seems to me. From the syllabus, which leads off the writeup of the 1948 ruling in the OP, the Court held four things, of which I'll quote three here:
1. The Alien Enemy Act precludes judicial review of the removal order. Pp. 163-166.
2. In the circumstances of relations between the United States and Germany, there exists a "declared war" notwithstanding the cessation of actual hostilities, and the order is enforceable. Pp: 166-170.
3. The Alien Enemy Act, construed as permitting resort to the courts only to challenge its validity and construction, and to raise questions of the existence of a "declared war" and of alien enemy status, does not violate the Bill of Rights of the Federal Constitution. Pp. 170-171.
I take that to mean that all three of those conditions must apply, not just one of them. Thus, per the third item, the President's decision regarding deportation of these particular aliens is subject to judicial review to determine whether a "declared war" exists. Per the requirement of the second item, no "declared war" exists, and so there is a valid question regarding the legitimacy of the deportations, however convenient to many of us those ba**ds were deported. That existence of that state of war is what Frankfurter hung his ruling on.
For me, this illustrates a fundamental problem with Trump's moves: he's too impatient. I understand and agree with his efforts to move at great speed, but he also needs to move at the speed of review, as carried out by his carefully selected and universally confirmed Cabinet. With his firings of the civil servants, they could have been made and made to stick the first time, had he both had his Secretaries carry out the firings rather than DOGE (whether directly or under his orders) and the firings been carried out pursuant to review, typically a 30-day process, especially if the review is centered on whether the job position is necessary vs the quality of work done by the incumbent. So it is with these deportations. No one in the Trump administration has made the case for a "declared war," which the declared "War on Terror" might stand in for, nor have they centered the deportations on other, more defensible and demonstrable claims of security risks—those risks have been made as afterthoughts to sloppily done deportation orders.
Trump and his team need to, as was posted in the halls of my grade school regarding fire drills, make haste slowly.
Eric Hines
I don't think you're disagreeing with what I said so much as wanting to talk about more than I wanted to talk about. The final sentence of the OP concedes that there is a court case to be had on the other matters; but the removal order itself is not reviewable. That's what this judge wanted to do, and he just doesn't have the power to do it.
If the NYT had written -that-, as you did, I wouldn't have had a problem with them. What they wrote instead was this intense meditation on the idea that we're already in a horrible constitutional crisis, which never once raises the issue that actually this was all decided long ago. Presidents may do this. Judges can't second-guess them. They can inquire into the other matters, and if the courts find that there is no war or war-like conditions as required by the law, they might find that the law can no longer be used. They can't review the removal orders.
As for speed, you know, the opposition gets a vote. They're going to be doing something or other to oppose him. By giving them this, he's using up their time on issues he can easily fix -- he can have Rubio re-issue the DOGE orders on USAID, for example. It will have used up a week or two of his opponents' time, and he'll still get what he wanted. Most likely he'll get on the order of eighty or ninety percent of what he wants out of Congress and the Courts eventually. If he was moving more slowly, his opponents would be able to focus their attention on places that might be more effective.
If Trump cannot stay inside thier loop, he is done. Slowing down is exactly the purpose of all the lawsuits etc- they are trying to make a sea of molasses for him to wade though.
There is no point of law, or well reasoned argument, or set of rules to follow, that will alter the viewpoint of, or deter, the leftists. These people have saturated the court system. They love this legal waffling about. They love process. Process is the Way. Process is how they prevented him from getting things done last time.
Never fight the way your enemy fights best.
If he cannot slay medusa, he will be killed or imprisoned by the opposition the moment they gain advantage. This is commie 101.
But that's my claim. If there's no declared war, there's no basis for the removal order under the AEA, and so it's without effect.
As courts like to do, if there's no declared war, there's no need to reach the removal itself--it simply isn't.
Eric Hines
If Trump cannot stay inside their loop, he is done.
30 days is well inside their loop. Especially if he carries on--and the Republican caucus in both houses can figure out how to act in unison (was the House caucus a one-off, or have they found some sense?), he can simply ignore the chatterers of the other Party.
Incidentally, 30 days also is well inside the courts' loops.
Eric Hines
I don’t read it that way. I read the 1948 decision to say that the courts might stop future removals if they find that there is no war or war like condition, but that they can’t review removals already ordered.
However, that’s the right conversation to have. The conversation about how this is a huge constitutional crisis is not that conversation. This one, about how to apply the existing standard, is perfectly ordinary.
Eric, I think you are putting way too much emphasis on 'declared war'. That's only one of the conditions mentioned in the Enemy Aliens Act. Trump didn't just declare this in a Truth Social post. His lawyers laid out a pretty detailed analysis of why the TdA satisfies other criteria in the EAA of "predatory incursion against the territory of the United States" in addition to them being declared a Terrorist Organization.
An except at Ann Althouse's site with links to the Proclamation/EO and an NYT story on it.
Granted that the district court was barred by applicable law from reviewing this executive action, there's still a question how to respond. It's one of the vexing "who decides" questions. Trump should win on appeal, but it doesn't follow that he can simply skip the appeal and decline to comply extra-judicially. I wish he could; I'd love to see the Supreme Court that he can, so we won't keep facing this. I'm interested in the argument that the plane was already in international waters, but I'm not sure that's going to work.
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