Didn’t Obama deport about 3 million people? No fuss, no muss, no SCOTUS involvement. No use of AEA, and no proof of gang membership required. What gives??
While the plaintiffs in the underlying case are alleging the AEA invocation is invalid, I don't see them succeeding on that. The question will be what measure of proof the DoJ must provide that a person is a member of Tren de Aragua.
That's going to be where the Supreme Court is going to frustate Donald Turmp's immigration policies.
Yes, how does one ‘prove’ that someone is a member of a criminal gang? It’s not like they’re registered with a government agency, or have signed a legal form, or carry membership cards. Peter, do you know if there is a legal precedent regarding this?
Ultimately it's a question of evidence and how much evidence is required to establish the allegation.
The tattoo designs a person has on their body, particularly on their face and hands, are a strong evidence. Gangs do not generally look kindly on non-members expropriating their designs and their ink just for funsies.
Then there are known associates, and people in whose company one is seen. There is legal substance to the notion that if you lay down with dogs you will get up with fleas.
How much of all such evidence is needed for that box to be checked off and the person adjudicated an Alien Enemy.
One thing I suspect will be found whenever we look closely at these detained Venezuelans: like Kilmar Abrego Garcia, they are without a doubt members of TdA.
Let’s hope that little thing called “Reality” means something in a Democrat-leaning court - since few other realities seem to matter to the Left.
I was thinking that somewhere in the past there was maybe a ruling that if you dress in the robes of the Klu Klux Klan, and ride with the KKK,etc., then that’s proof, even if you deny that you’re a member.
I would not be surprised an effort to challenge the Alien Enemy classification—but I suspect that even the ACLU does not have much faith that challenge will prevail.
One theme that the ACLU filing in this latest case A.A.R.P. v Trump has in common with the earlier Trump v J.G.G. is the insistence that Trump’s invocation of the AEA is an incorrect reading of the statute, that there has to be a declared war or an actual attempted or threatened predatory incursion by a defined state government for the AEA to be invoked.
The court pointedly declined to address that issue in its ruling in Trump v J.G.G. They also reduced challenges to Trump’s invocation of the AEA to habeas corpus petitions—which would be the one legal challenge that is fully justiciable even when the particulars of a statute itself are not subject to judicial review.
It seems to me that if the Court were greatly troubled by the invocation of the AEA or how the relevant class of Alien Enemy were defined, they would have upheld the TRO in Trump v J.G.G. The original plaintiffs were already detained. If that detention was wrongful, injury was already done, making every aspect of that case clearly justiciable.
However, that ruling accepted the invocation of the AEA pretty much without comment, which would seem to imply that the Court does not view the invocation itself to be Constitutionally flawed. As Luedecke makes plain, enforcement of the AEA itself is not subject to judicial review, and the only real challenge is whether or not one is part of the described class of Alien Enemies.
Unless the Court is prepared to weigh in on the invocation of the AEA itself—which it seems very reluctant to do—the only real challenge that is left for the ACLU to make on behalf of detainees is the habeas petition challenging their membership in the described class of Alien Enemies. The only point which is going to be readily subject to any sort of challenge is their membership in TdA.
The way I read the pleadings that’s not a challenge the ACLU believes they are likely to win.
Peter, you’re so good at this. There’s a lot of hair-splitting and legal mumbo-jumbo in this whole situation, so I appreciate you spelling it all out for us. I thought you made a perfectly reasoned argument in your previous post, so I was perplexed when the Supreme Court came up with this temporary ruling. Frankly, it feels politically motivated to me. The Supreme Court better be as good at reasoning as you are in their final ruling!
If the Court was inclined to invalidate Trump's invocation of the Alien Enemies Act it seems to me they would have done so in their per curiam opinion in Trump v J.G.G..
They did not do so, and they explicitly declined even to address any reasonings for doing so. Rather, they specifically noted that AEA invocations largely "precluded judicial review" as was held in Luedecke. It is difficult to see how that is not a concession that Trump is not coloring outside the lines with this use of the AEA.
The most obvious avenue of challenge to deportation under the AEA is going to be the claim that a person is not a member of TdA. That would be the sort of challenge tailor made for a habeas peitition.
Arguably, the Court could rule on the applicability of the AEA to the presence of MS13 and TdA gang members in the US, but they have already shied away from that issue once.
The Biden administration knew what it was doing. By having a defacto open border policy guaranteed the system would be overwhelmed. Thus setting up this crisis. Tell me again how many million illegals were deported under Obama? And in each and every case due process was followed to the utmost?
The nature of "due process" is that it is incumbent upon the defendent in a proceeding to raise challenges of due process.
By definition, whenever due process failings are not asserted by the defendant, the requirement for due process is functionally deemed to have been met.
With respect to deportations, the only requirement for the Trump Administration, based on the recent per curiam ruling in Trump v J.G.G., is to not frustrate habeas corpus petitions.
Whether or not Congress could move to suspend habeas for TdA-related deportations is something of a question. It's not ruled out in Article 1 Section 9, but it is undeniably discouraged.
No matter. We have US Democrat Senators taking up the case. The situation we find ourselves in is not a defect, but a design feature set in motion by the previous administration.
Didn’t Obama deport about 3 million people? No fuss, no muss, no SCOTUS involvement. No use of AEA, and no proof of gang membership required. What gives??
This was inevitable; all the courts are now thoroughly corrupt, just like our "selected" officials. We are on our own.
The Supreme Court issued an order.
While the plaintiffs in the underlying case are alleging the AEA invocation is invalid, I don't see them succeeding on that. The question will be what measure of proof the DoJ must provide that a person is a member of Tren de Aragua.
That's going to be where the Supreme Court is going to frustate Donald Turmp's immigration policies.
Yes, how does one ‘prove’ that someone is a member of a criminal gang? It’s not like they’re registered with a government agency, or have signed a legal form, or carry membership cards. Peter, do you know if there is a legal precedent regarding this?
Ultimately it's a question of evidence and how much evidence is required to establish the allegation.
The tattoo designs a person has on their body, particularly on their face and hands, are a strong evidence. Gangs do not generally look kindly on non-members expropriating their designs and their ink just for funsies.
Then there are known associates, and people in whose company one is seen. There is legal substance to the notion that if you lay down with dogs you will get up with fleas.
How much of all such evidence is needed for that box to be checked off and the person adjudicated an Alien Enemy.
One thing I suspect will be found whenever we look closely at these detained Venezuelans: like Kilmar Abrego Garcia, they are without a doubt members of TdA.
Let’s hope that little thing called “Reality” means something in a Democrat-leaning court - since few other realities seem to matter to the Left.
I was thinking that somewhere in the past there was maybe a ruling that if you dress in the robes of the Klu Klux Klan, and ride with the KKK,etc., then that’s proof, even if you deny that you’re a member.
I would not be surprised an effort to challenge the Alien Enemy classification—but I suspect that even the ACLU does not have much faith that challenge will prevail.
One theme that the ACLU filing in this latest case A.A.R.P. v Trump has in common with the earlier Trump v J.G.G. is the insistence that Trump’s invocation of the AEA is an incorrect reading of the statute, that there has to be a declared war or an actual attempted or threatened predatory incursion by a defined state government for the AEA to be invoked.
The court pointedly declined to address that issue in its ruling in Trump v J.G.G. They also reduced challenges to Trump’s invocation of the AEA to habeas corpus petitions—which would be the one legal challenge that is fully justiciable even when the particulars of a statute itself are not subject to judicial review.
It seems to me that if the Court were greatly troubled by the invocation of the AEA or how the relevant class of Alien Enemy were defined, they would have upheld the TRO in Trump v J.G.G. The original plaintiffs were already detained. If that detention was wrongful, injury was already done, making every aspect of that case clearly justiciable.
However, that ruling accepted the invocation of the AEA pretty much without comment, which would seem to imply that the Court does not view the invocation itself to be Constitutionally flawed. As Luedecke makes plain, enforcement of the AEA itself is not subject to judicial review, and the only real challenge is whether or not one is part of the described class of Alien Enemies.
Unless the Court is prepared to weigh in on the invocation of the AEA itself—which it seems very reluctant to do—the only real challenge that is left for the ACLU to make on behalf of detainees is the habeas petition challenging their membership in the described class of Alien Enemies. The only point which is going to be readily subject to any sort of challenge is their membership in TdA.
The way I read the pleadings that’s not a challenge the ACLU believes they are likely to win.
Heavens, you’re smart!
Peter, you’re so good at this. There’s a lot of hair-splitting and legal mumbo-jumbo in this whole situation, so I appreciate you spelling it all out for us. I thought you made a perfectly reasoned argument in your previous post, so I was perplexed when the Supreme Court came up with this temporary ruling. Frankly, it feels politically motivated to me. The Supreme Court better be as good at reasoning as you are in their final ruling!
The Court issued an order. Neither more nor less.
If the Court was inclined to invalidate Trump's invocation of the Alien Enemies Act it seems to me they would have done so in their per curiam opinion in Trump v J.G.G..
They did not do so, and they explicitly declined even to address any reasonings for doing so. Rather, they specifically noted that AEA invocations largely "precluded judicial review" as was held in Luedecke. It is difficult to see how that is not a concession that Trump is not coloring outside the lines with this use of the AEA.
The most obvious avenue of challenge to deportation under the AEA is going to be the claim that a person is not a member of TdA. That would be the sort of challenge tailor made for a habeas peitition.
Arguably, the Court could rule on the applicability of the AEA to the presence of MS13 and TdA gang members in the US, but they have already shied away from that issue once.
The Biden administration knew what it was doing. By having a defacto open border policy guaranteed the system would be overwhelmed. Thus setting up this crisis. Tell me again how many million illegals were deported under Obama? And in each and every case due process was followed to the utmost?
The nature of "due process" is that it is incumbent upon the defendent in a proceeding to raise challenges of due process.
By definition, whenever due process failings are not asserted by the defendant, the requirement for due process is functionally deemed to have been met.
With respect to deportations, the only requirement for the Trump Administration, based on the recent per curiam ruling in Trump v J.G.G., is to not frustrate habeas corpus petitions.
Whether or not Congress could move to suspend habeas for TdA-related deportations is something of a question. It's not ruled out in Article 1 Section 9, but it is undeniably discouraged.
No matter. We have US Democrat Senators taking up the case. The situation we find ourselves in is not a defect, but a design feature set in motion by the previous administration.