A quick take on some of the questions raised by President Trump's ... dubious invocation of a 1798 statute as a basis for arresting, detaining, and removing non-citizens with ties to Tren de Aragua.
But Trump doesn’t believe in carbon footprints and such. I also think stretching a normal law enforcement problem by calling it a national security threat doesn’t give much credit to our law officers.
What you argue was not supported by the Proclamation, which although based on the terrorist org federal law, only argued "invasion". Predatory incursion would have opened up the Proclamation to unconstitutionality, as Art 4, sec 4 only addresses "invasion", from either an originalist or textualist standpoint.
Thanks for this impressive and, under the time constraints, very comprehensive overview of the issues raised by Trump's Executive Order. I would expect DOJ to press very hard on the President's foreign relations powers and national security discretion, in order to invoke some creditable doctrine of judicial deference and non-review. The Administration certainly has some chance at getting the Court of Appeals it wants, and already has three or four votes at the Supreme Court for a hands-off deference to a unitary and near-plenary presidency. Thinking ahead -- because ahead we are going -- where might a SCOTUS majority stand on these issues??
I think it would be interesting to know how long those World War II appellants were kept in detention. Even if each were subjected to a lot of case by case review, it might have taken a long time and could equally apply here and leave plenty of detainees in custody until after Trump’s presidency.
Whatever deference might have been due any proclamation by any prior president, it definitely is not due this president.
Trump is profoundly different from any president before him in ways that reflect on his credibility and whether he's acting in good faith. He cannot be voted out of office (or re-elected). He almost certainly will not be impeached again by the House, much less convicted and removed by the Senate. He apparently could not care less about the Republican party or conservatives, generally. And, most compelling, six SCOTUS justices--for the first time in our nation's history--proclaimed that Trump (and everybody he grants pardons to) cannot be prosecuted for any of the federal crimes they commit in their wild and egregious abuses and usurpations of power.
After SCOTUS usurped the power to pretend that we delegated to SCOTUS the power to make presidents "immune" from prosecution for criminal abuses and usurpations of power, Trump campaigned for control of America's nuclear arsenal by proclaiming “If I were the president, I would inform the threatening country — in this case, Iran — that if you do anything to harm this person, we are going to blow your largest cities and the country itself to smithereens. We are going to blow it to smithereens.”
Trump (even as president) has a long and well-known history of tossing about wildly excessive proclamations, implications and threats as a negotiating tactic. He did it on and before January 6. In another example a mere month ago, Trump proclaimed, "I would like a deal done with Iran on non-nuclear. I would prefer that to bombing the hell out of it.”
Then, there is the long, well-documented record of Trump's utter disregard and disrespect for truth or factual accuracy when it is contrary to his objectives. Far too many times for me to care to try to count, Trump proved that he could not be trusted to tell the truth or be accurate as to material facts (except to the extent it might benefit him). Everything for this president is a matter of bluff, bluster and negotiation (often through intimidation).
Long ago, I learned who Trump was from Trump, himself. I read his book, "The Art of the Deal." Trump pretty explicitly boasted that the art of his deal was the manipulation of perception, and sometimes, specifically, the practice of deception. Moreover, what motivates this man is money and the power it can buy. I would not be even slightly surprised to learn that Trump's true objective is getting a piece of Maduro's pie.
When Trump speaks of the corruption of government, we all should listen. Trump knows what he's talking about. Trump knows corruption. No rational person could reasonably defer to any proclamation by any such president.
Please note what the law says about due process of law after the president issues his proclamation, including who has the power to order removal and when and why. See 50 U.S.C. 23:
After any such proclamation [by the president] has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.
The scan of the statute refers to 'males of the age fourteen years and upwards', but the EO seems to refer to all Venezuelans citizens including females. Had the Alien Enemy Act been rewritten or was there a general acknowledgement that references to only one sex shall include both sexes? Given the current governments obsession with gender, and the clear text of the original act, it seems curious.
Assuming the courts are willing to defer to the executive on the invasion question but still insist on reviewing the membership status of each individual potential deportee, does this EO make it easier for the government to detain people pending removal proceedings?
Good question. But, do not assume all federal courts are willing to defer an EO. Note WELL a federal Judge I have appeared before, Judge William H. Alsup, "Bill" in the Northern District of California. Judge Alsup has Musk-OPM has ... ahh has ... looking for the proper legal phrase ... has Musk-OPM by the balls.
Oh yeah, Judge Alsup ordered OPM Director (NOT) Charles Ezell to testify at Thursday's court Hearing.
Please note, Popcorn 🍿cannot be eaten during Court sessions.
Not directly on point, but I recently posted a query about the meaning of "predatory incursion". It is not "invasion" under Art 4 and the Proclamation relies on terrorist statute. If you aid or abet a cyberattack will you not only be criminally charged, but deported?
Politico: "Federal Judge halts Trump's [ & Pamela Jo Bondi ] deportations invoking the [1798] Alien Enemies Act". The case is an active & successful ACLU lawsuit.
Kudos to Politico's top legal Reporters: MYAH WARD, Kyle Cheney, Ali Bianco & Josh Gerstien all of which are in the Top 10 of our Country's legal reporters.
"(The government’s appellate brief puts forward the regrettable argument that one acceptable definition of invasion is “the arrival somewhere of people or things who are not wanted there”—a ludicrously low bar)." Hmmm, under this definition are Musk's people an invasion?
In regard to the people who were sent to El Salvador yesterday, was there any judicial determination that they were members of TdA? Or did ICE simply declare them TdA and, thus, deportable under the EO. And is there any U.S. judicial recourse for them now that they’re in an El Salvadoran prison?
“Trump’s proclamation does not apply to all Venezuelan nationals in the United States. Rather, it applies only to those who are 14 or older; who are neither naturalized citizens of the United States nor lawful permanent residents; and who are “members” of TdA.” When has CF47 actually followed a rule?
Thank you for your analysis. Here is what I am having a hard time understanding: why invoke this law at all? The current administration was already able to deport large numbers of illegal immigrants. What benefit is gained by relying on a law that will likely be challenged in court?
Because if they can convince a court that the EO is within the meaning of the statute, then the President will be acting pursuant to Congressional authorization. There will then be no check on ICE’s actions at the President’s direction.
Thank you for this impressively prompt and insightful consideration of this vitally important issue. My first thought was that Trump was guilty of a mere veneer of pretending to construe and comply with this law reminiscent of the characterization of Vice President Thomas Jefferson of abuses of the Alien and Sedition Acts in his time ("a reign of witches" that will "pass over" and "their spells dissolve" when "the people recovering their true sight, restore their government to it’s true principles"). https://founders.archives.gov/documents/Jefferson/01-3002-0280.
My second thought was that Trump might be right, and I look forward to seeing the proof that the government of a foreign nation is doing what Trump proclaimed. Maybe this is today's equivalent of Bush's WMD's in Iraq. Maybe not. These might turn out to be fascinating proceedings.
This is a more general question but aren't lawyers obligated to present good faith arguments based on evidence in court? The argument that TdA is the Venezuelan government or a separate foreign nation is absurd on its face and there is no evidence supporting it. I know that courts are loath to sanction lawyers, especially DOJ lawyers, but there are now several examples of Trump's DOJ presenting arguments more akin to throwing spaghetti at the wall to see what will stick than to making substantive legal arguments. Can courts do anything to push back on this abuse and waste of time?
Trump signed this order "this fourteenth day of March, in the year of our Lord two thousand twenty-five, and of the Independence of the United States of America the two hundred and forty-ninth."
I thought maybe Trump copied that format from President Washington's famous Neutrality Proclamation. But even that differed materially from this. It did not mention "our Lord." The Neutrality Proclamation stated "the twenty-second day of April, one thousand seven hundred and ninety-three, and of the Independence of the United States of America the seventeenth."
But Trump doesn’t believe in carbon footprints and such. I also think stretching a normal law enforcement problem by calling it a national security threat doesn’t give much credit to our law officers.
What you argue was not supported by the Proclamation, which although based on the terrorist org federal law, only argued "invasion". Predatory incursion would have opened up the Proclamation to unconstitutionality, as Art 4, sec 4 only addresses "invasion", from either an originalist or textualist standpoint.
Thanks for this impressive and, under the time constraints, very comprehensive overview of the issues raised by Trump's Executive Order. I would expect DOJ to press very hard on the President's foreign relations powers and national security discretion, in order to invoke some creditable doctrine of judicial deference and non-review. The Administration certainly has some chance at getting the Court of Appeals it wants, and already has three or four votes at the Supreme Court for a hands-off deference to a unitary and near-plenary presidency. Thinking ahead -- because ahead we are going -- where might a SCOTUS majority stand on these issues??
I think it would be interesting to know how long those World War II appellants were kept in detention. Even if each were subjected to a lot of case by case review, it might have taken a long time and could equally apply here and leave plenty of detainees in custody until after Trump’s presidency.
Yes!!
Whatever deference might have been due any proclamation by any prior president, it definitely is not due this president.
Trump is profoundly different from any president before him in ways that reflect on his credibility and whether he's acting in good faith. He cannot be voted out of office (or re-elected). He almost certainly will not be impeached again by the House, much less convicted and removed by the Senate. He apparently could not care less about the Republican party or conservatives, generally. And, most compelling, six SCOTUS justices--for the first time in our nation's history--proclaimed that Trump (and everybody he grants pardons to) cannot be prosecuted for any of the federal crimes they commit in their wild and egregious abuses and usurpations of power.
After SCOTUS usurped the power to pretend that we delegated to SCOTUS the power to make presidents "immune" from prosecution for criminal abuses and usurpations of power, Trump campaigned for control of America's nuclear arsenal by proclaiming “If I were the president, I would inform the threatening country — in this case, Iran — that if you do anything to harm this person, we are going to blow your largest cities and the country itself to smithereens. We are going to blow it to smithereens.”
Trump (even as president) has a long and well-known history of tossing about wildly excessive proclamations, implications and threats as a negotiating tactic. He did it on and before January 6. In another example a mere month ago, Trump proclaimed, "I would like a deal done with Iran on non-nuclear. I would prefer that to bombing the hell out of it.”
Then, there is the long, well-documented record of Trump's utter disregard and disrespect for truth or factual accuracy when it is contrary to his objectives. Far too many times for me to care to try to count, Trump proved that he could not be trusted to tell the truth or be accurate as to material facts (except to the extent it might benefit him). Everything for this president is a matter of bluff, bluster and negotiation (often through intimidation).
Long ago, I learned who Trump was from Trump, himself. I read his book, "The Art of the Deal." Trump pretty explicitly boasted that the art of his deal was the manipulation of perception, and sometimes, specifically, the practice of deception. Moreover, what motivates this man is money and the power it can buy. I would not be even slightly surprised to learn that Trump's true objective is getting a piece of Maduro's pie.
When Trump speaks of the corruption of government, we all should listen. Trump knows what he's talking about. Trump knows corruption. No rational person could reasonably defer to any proclamation by any such president.
Please note what the law says about due process of law after the president issues his proclamation, including who has the power to order removal and when and why. See 50 U.S.C. 23:
After any such proclamation [by the president] has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.
The scan of the statute refers to 'males of the age fourteen years and upwards', but the EO seems to refer to all Venezuelans citizens including females. Had the Alien Enemy Act been rewritten or was there a general acknowledgement that references to only one sex shall include both sexes? Given the current governments obsession with gender, and the clear text of the original act, it seems curious.
The current version isn’t gender-specific:
https://www.law.cornell.edu/uscode/text/50/21
When did that change?
April 16, 1918 (look at the bottom of the statute in the link SV provided. You will find a date and also a link to Stat (with the text as amended).
Assuming the courts are willing to defer to the executive on the invasion question but still insist on reviewing the membership status of each individual potential deportee, does this EO make it easier for the government to detain people pending removal proceedings?
Good question. But, do not assume all federal courts are willing to defer an EO. Note WELL a federal Judge I have appeared before, Judge William H. Alsup, "Bill" in the Northern District of California. Judge Alsup has Musk-OPM has ... ahh has ... looking for the proper legal phrase ... has Musk-OPM by the balls.
Oh yeah, Judge Alsup ordered OPM Director (NOT) Charles Ezell to testify at Thursday's court Hearing.
Please note, Popcorn 🍿cannot be eaten during Court sessions.
😂😂😂 on the popcorn!!!
Not directly on point, but I recently posted a query about the meaning of "predatory incursion". It is not "invasion" under Art 4 and the Proclamation relies on terrorist statute. If you aid or abet a cyberattack will you not only be criminally charged, but deported?
Good point Brooks White.
Politico: "Federal Judge halts Trump's [ & Pamela Jo Bondi ] deportations invoking the [1798] Alien Enemies Act". The case is an active & successful ACLU lawsuit.
Kudos to Politico's top legal Reporters: MYAH WARD, Kyle Cheney, Ali Bianco & Josh Gerstien all of which are in the Top 10 of our Country's legal reporters.
Good one lead Author, Myah!
"(The government’s appellate brief puts forward the regrettable argument that one acceptable definition of invasion is “the arrival somewhere of people or things who are not wanted there”—a ludicrously low bar)." Hmmm, under this definition are Musk's people an invasion?
Am grateful for S Ct precedent on this issue and for SV who has the knowledge to explain all of the nuances.
In regard to the people who were sent to El Salvador yesterday, was there any judicial determination that they were members of TdA? Or did ICE simply declare them TdA and, thus, deportable under the EO. And is there any U.S. judicial recourse for them now that they’re in an El Salvadoran prison?
“Trump’s proclamation does not apply to all Venezuelan nationals in the United States. Rather, it applies only to those who are 14 or older; who are neither naturalized citizens of the United States nor lawful permanent residents; and who are “members” of TdA.” When has CF47 actually followed a rule?
Note: EO does not say "is" TDA, or even "accused" of being TDA... It says "deemed" TDA, which the Orange Stained Hitler can choose to do for *anyone*
Thank you for your analysis. Here is what I am having a hard time understanding: why invoke this law at all? The current administration was already able to deport large numbers of illegal immigrants. What benefit is gained by relying on a law that will likely be challenged in court?
Because if they can convince a court that the EO is within the meaning of the statute, then the President will be acting pursuant to Congressional authorization. There will then be no check on ICE’s actions at the President’s direction.
Thank you for this impressively prompt and insightful consideration of this vitally important issue. My first thought was that Trump was guilty of a mere veneer of pretending to construe and comply with this law reminiscent of the characterization of Vice President Thomas Jefferson of abuses of the Alien and Sedition Acts in his time ("a reign of witches" that will "pass over" and "their spells dissolve" when "the people recovering their true sight, restore their government to it’s true principles"). https://founders.archives.gov/documents/Jefferson/01-3002-0280.
My second thought was that Trump might be right, and I look forward to seeing the proof that the government of a foreign nation is doing what Trump proclaimed. Maybe this is today's equivalent of Bush's WMD's in Iraq. Maybe not. These might turn out to be fascinating proceedings.
This is a more general question but aren't lawyers obligated to present good faith arguments based on evidence in court? The argument that TdA is the Venezuelan government or a separate foreign nation is absurd on its face and there is no evidence supporting it. I know that courts are loath to sanction lawyers, especially DOJ lawyers, but there are now several examples of Trump's DOJ presenting arguments more akin to throwing spaghetti at the wall to see what will stick than to making substantive legal arguments. Can courts do anything to push back on this abuse and waste of time?
Another excellent explanation.
Is it common for Executive Orders to conclude by invoking "our Lord" (as this EO does)?
Trump signed this order "this fourteenth day of March, in the year of our Lord two thousand twenty-five, and of the Independence of the United States of America the two hundred and forty-ninth."
I thought maybe Trump copied that format from President Washington's famous Neutrality Proclamation. But even that differed materially from this. It did not mention "our Lord." The Neutrality Proclamation stated "the twenty-second day of April, one thousand seven hundred and ninety-three, and of the Independence of the United States of America the seventeenth."