Finally. Due process for the Trump administration’s immigrant detainees has been the single most important issue for the courts to address. While it was a relief that the Supreme Court weighed in with an order that all detainees must be allowed the right of habeas corpus, until this week, no judge had ruled on the underlying applicability at the heart of the policy: Trump’s invocation of the 1789 Alien Enemies Act. On Thursday, a Trump-appointed judge ordered all deportations in his district to stop. Fernando Rodriguez Jr., a federal judge in Texas and member of the Federalist Society, ruled that it’s ridiculous to define the presence of Venezuelan gang members in the country as an “invasion” or “predatory incursion.”
The judge admitted that he could not question the administration’s contention that the Tren de Aragua gang is operating at the direction of the Venezuelan government (Trump’s own intelligence community disputes this claim), so Rodriguez made the effort to delve into the archives to find how the law was meant to apply:
The historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms. As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class, or to remove them from the country.
The Proclamation to which he refers is the one that declared the Tren de Aragua gang to have invaded the country and was therefore subject to immediate deportation. The judge wrote:
The President cannot summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of the United States, followed by the identification of the alien enemies subject to detention or removal.
Thank you, Judge Rodriguez. The use of this ancient wartime power, which was only used three times before, and grievously abused in the case of the Japanese and Italian American internment, is an attack on common sense. Of course, we are not at war with Venezuela; the entire assumption is absurd, and the fact that our legal system has been dancing around it for months now is frustrating. Knowing how quickly the Supreme Court can act when it wants to, one hopes they will take up Trump’s appeal very quickly and put this nonsense to rest once and for all.
At least we have one judge, who nobody can claim is a biased lefty, finally saying the obvious.
At worst, these gang members are common criminals, something the United States justice and immigration system deal with every day. But, as we’ve found out, some of these alleged gang members are actually just ordinary immigrants in the country, either legally protected or waiting for their cases to run their course. Trump’s “deal” with the president of El Salvador, Nayib Bukele, to lock these alleged gang members in a notorious gulag with no hope of a trial or any other due process makes the policy an even more grotesque assault on human rights.
It’s worth taking a look back at how this thing got started. Unsurprisingly, it began with Trump’s senior adviser Stephen Miller. The New York Times published a long piece a few days ago about the deportation agenda, noting:
Mr. Miller had long been interested in the Alien Enemies Act, a law passed in 1798 that allows the U.S. government to swiftly deport citizens of an invading nation. The authority has been invoked just three times in the past, all during times of war. He saw it as a powerful weapon to apply to immigration enforcement.
The law “allows you to instantaneously remove any noncitizen foreigner from an invading country, aged 14 or older,” Mr. Miller told the right-wing podcaster Charlie Kirk in a September 2023 interview, adding: “That allows you to suspend the due process that normally applies to a removal proceeding.”
You’ll recall that as the campaign was heating up last year, Trump was having some trouble getting traction on his signature issue after he blew up the bipartisan border bill, making it clear that he did it purely for political purposes. President Biden had severely tightened up the border, so Trump was having to rant incoherently about numbers and statistics, but it just didn’t have the juice it used to have. Until something happened that played right into Stephen Miller’s plans.
A video went viral via the Rupert Murdoch media empire in August, with Fox News and The New York Post hyping footage of armed men in the hallways of an apartment building in Aurora, Colorado. As New York Times reporter Jonathan Weissman recounts, it “metastasized into grandiose stories of whole buildings, whole sections of town and, in Mr. Trump’s telling, the whole city of Aurora being taken over by migrants carrying weapons of war.” It turned out that the story was made up by the slumlord who owned the building to excuse his neglect and some of the locals who had pumped up the story later recanted.
But that idea of armed migrants carrying weapons of war was the hook Miller had been looking for and soon Trump was talking about the Alien Enemies Act at his campaign rallies, saying that the gang had “invaded and conquered” America, which he called an “occupied state.” He spent the rest of the campaign building up this idea of America being invaded by criminals.
When Salvadoran president Bukele came to visit a couple of weeks ago, he made the case for the deportations by suggesting that the United States was comparable to his country back in 2022, when it was called the murder capital of the world. He said:
[Y]ou have 350 million people to liberate. But to liberate 350 million people, you have to imprison some. That’s the way it works, right? You cannot just free the criminals and think crime’s going to go down magically. You have to imprison them, so you can liberate 350 million Americans that are asking for the end of crime and the end of terrorism.
The United States is not El Salvador, then or now. We are not at war with Venezuela or any country. Crime has been going down for years now, especially violent crime. (We do have a sickening amount of gun violence but that’s the last thing Trump wants to curb, and it’s hardly an immigrant problem.) 350 million Americans are not clamoring to be “liberated,” at least not from some obscure street gang that nobody had heard of until Stephen Miller and Donald Trump made them into poster boys for their anti-immigrant crusade.
One would hope that the Supreme Court will rule that this misuse of the Alien Enemies Act is illegal, as anyone who can read English can see. If their past behavior is any guide, I’d guess it’s going to be a while before they do it. But at least we have one judge, who nobody can claim is a biased lefty, finally saying the obvious. It’s about time.
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