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PaperclipPerfector  1mo ago (text post)   30028 thread views

Culture War Roundup for the week of March 17, 2025

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A potentially more interesting case is the recent deportation of alleged Venezuelan gang members. A US district court ordered that the deportations not proceed for 14 days while it hears arguments about the legality of the deportations under the Alien Enemies Act, but that order may have been issued after the gang members had already left US soil. I assume they will try to deport more people under the Act and that these cases will go up to the Supreme Court as well.

Courtlistener docket is here. Alien Enemies Act is codified as 50 USC Chapter 3. Trump's Executive order is here.

On the basis of the evidence so far (which I think is just what is in the EO itself) I am skeptical that the actions of Tren de Aragua satisfy the statutory requirement of being an "invasion or predatory incursion" that is "perpetrated" by a "foreign nation or government." There's a hearing scheduled for an hour or so from now and I will be pretty surprised if it does not end in the beginning of contempt proceedings for some officials. Just Security has an article with a pretty detailed timeline.

ETA:

Trump announced in a post last night that he was considering voiding the last minute preemptive Biden pardons of Fauci, members of January 6 House committee, and others, because an "autopen" was used to sign the pardons. Presidential authority to grant pardons is very broad, and apparently autopen has been used by prior presidents; looks like a losing case if it goes before the Supreme Court.

Trying to imagine the logistics of how this plays out. Trump's DOJ presumably charges one or more pardoned individuals with a crime within the scope of the pardon. They move to dismiss (or equivalent) on the basis they were pardoned. DOJ claims the pardons are not valid. Defendants produce whatever constitute the official pardon documents, various presidential announcements of the pardons etc. DOJ's rebuttal is ???. What could possibly go in the blank such that a court would permit the prosecution to move forward? I am confident that a court is not going to permit an investigation into a President's state of mind to try and determine a pardon's validity.

I’m not sure how justiciable this case is. See Ludecke v Watkins.

I think that is easily distinguishable. The United States is definitely not in a state of "declared war" with Venezuela (or any other government or foreign nation) the way it was with Germany in 1948.

It was in a state of war with Germany in 1948?

The whole point of that opinion was that state of war is non justiciable. That is, if the president determines there is a state of war then there is a state of war.

I agree factually this is different but if you take that precedent seriously then I’m not sure you get to a different answer.

No the statute isn’t limited to whether congress declared war. Yes in Ludecke there was a war declared and the question was when the war ended. The court took a rather broad view as to who gets to answer that question (ie the executive and not the courts). The logic of Ludecke seemingly would apply for an invasion determined by the Executive.

I agree that the question of whether the aliens are in the particular class is justiciable but arguably ACLU waived that claim when saying the plaintiffs were all aliens from Venezuela.

The class is members of Tren de Aragua. Not all aliens from Venezuela - Trump isn't claiming that the US is at war with Venezuela. Under the WW2-era jurisprudence whether any given alien is a member of the class is justiciable, including via habeas corpus. That is why Trump had to ship the detainees out of the jurisdiction before a court could rule on what is going on - if he has to litigate each detainee's membership of Tren de Aragua individually then the policy goal of the whole scheme is not achieved.

I agree there is a real question on class (I noted it in my post).

I am sympathetic to the Buekle (sp?) approach: when the gang members literally print on themselves who they are the risk of a false positive is extremely low and individual adjudication should not be necessary since shock and awe is needed.

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