Well argued, and there’s a case to be made for it. My point is that its application to the predatory incursion aspect of the law is new, and requires us to trust the executive when it takes domestic law enforcement action on a national security issue in a way that is not justiciable (i.e., subject to judicial oversight). Strip away the i…
Well argued, and there’s a case to be made for it. My point is that its application to the predatory incursion aspect of the law is new, and requires us to trust the executive when it takes domestic law enforcement action on a national security issue in a way that is not justiciable (i.e., subject to judicial oversight). Strip away the identity of the president and the alien enemies and present that situation in the abstract, and you see how it poses risks.
And I’m on the record here arguing in defense (at least conditionally) of the Mahmoud Khalil detention, which has precedent and is justiciable. But to my point the left lost their minds over that case and now can’t make a helpful messaging distinction between it and this one which actually could pose some serious constitutional issues.
What are you talking about? 'Predatory incursion' was written in 1798. The fact that it hasn't invoked as justification for applying the Alien Enemies Act is irrelevant. If you argue otherwise, you are in effect stating that a law cannot be applied as written unless it was previously applied. So stupid.
As to your point about [____________] requiring us to 'trust the executive' ...you conveniently left out the entity doing the requiring. Really, what are you saying here? You can't be so fatuous as to claim the law requires us to trust the executive. So what then? Who or what, exactly, requires that we trust the guy we ALREADY entrusted when we gave him our vote? I mean, you know how this works right? We trust our elected official with our votes BEFORE they take office and take action. We don't put them in office and then say, "Whoa big fella. We have to see if we trust you first."
This is all such nonsense. The Judge ordered the plane turned around because he's a partisan hack. Stop pretending otherwise. And stop pretending that it's an open question with our Constitution as to whether our President is powerless to deal with illegal immigrant criminals (redundant, I know) whom nary a single citizen wants as a neighbor.
Oh man, here we go. Just a week ago I was arguing in defense of the administration’s detention of Mahmoud Khalil (or at least attempting to explain why it was possibly justified) to some emotional leftist partisans. Let me try to explain why I see this case differently again. (And, by the way, it’s possible to simultaneously believe, as I do, that Boasberg is a partisan hack AND that the administration is taking a big leap. Nothing prevents those two things from being true together — that was JD Free’s original point).
A declared international war, in which this act has previously been applied, is a very high, clearly interpretable bar for which to invoke domestic executive law enforcement powers that are not reviewable by courts. So, if we are at declared war with Japan, an admin can use the act to take swift and decisive action against Japanese nationals in the country who could be spies, saboteurs, etc. Hence how this was applied in WWII (and I’m graciously overlooking all the other concerns about the use of this in wartime and assuming it’s not executive overreach).
Once we step into the predatory incursion side of it, there is necessarily some interpretation of what that means by an administration, unlike the clear standard of a declared international war. Administrations interpret the meaning of laws all the time. Fine. But here, no court has the ability to rule whether their interpretation of the law is constitutional (or even remotely logically sensible).
To illustrate, you may be persuaded by the Tren de Aragua reasoning for a predatory incursion by Venezuela. But it requires you to trust the administration’s story because no court can verify it by demanding the production of evidence. What if, in 2032, President Ocasio-Cortez declares that we are victims of a predatory incursion by a Zionist conspiracy headed by Israeli Prime Minister Itamar Ben-Gvir? Does this Trump precedent allow future President Ocasio-Cortez to mass deport Israeli citizens? No court could intervene. That’s the trust (ie ability to use force unilaterally on our own soil) we are giving the executive here.
I am sympathetic to your cautionary approach. But you are arguing a slippery slope that is pretty easy to define and avoid.
If your proposed Zionists arrived inside our borders and began threatening American citizens with bodily harm and death, raping and trafficking children and women, taking over apartment buildings and extorting rent and otherwise threatening the health and well-being of citizens inside our borders, then absolutely we could call it a predatory incursion and deport them. The word "predatory" is carrying the load here, and violence and crime against citizens by non-citizens who entered the country illegally is a PERFECT justification for deportation.
Your slippery slope argument would be more compelling if the TdA were here minding their own business and trying to contribute to our society. But they manifestly are not. They are vicious gang members who are here to spread their crime network. We don't need a court to give the president, who heads the single branch of our federal government invested with securing our borders and enforcing our laws, permission to round them up and remove them from our country. It is an obvious response to a problem that should never have been allowed to happen.
I agree on a factual basis with everything people are saying about TdA. And as I said above, it’s a persuasive case from the admin.
The lack of justiciability is the crux of the problem. An administration has absolutely no burden of proof to reach if the Alien Enemies actions never have to reach judicial scrutiny. No requirement to prove the removed people have made a predatory incursion or are even nationals of the enemy country. They can, but have no requirement to, make a case in the “court of public opinion” which as we know is more mercurial than all but the most hackish judges.
And to your last point, yes, the executive has authority to protect borders and enforce laws, but those domestic actions are also subject to judicial oversight. If we grant the executive the ability to exercise wartime powers on our home soil with no judicial oversight, that is not a slippery slope so much as a wide open door for future abuse. The closest comparison I can make is the warrantless surveillance of the type Snowden exposed.
And lest I sound like I’m just criticizing without offering solutions, maybe I’m missing why something like this can’t be done against TdA:
I think the argument against that RICO solution would be the time and cost to the taxpayer, especially given the likelihood there would be anti-Trump activist lawyers trying to tie up every court case. It would turn the effort to deport these criminal aliens into an expensive judicial circus that drags on for months or years. At the same time I totally get your concern about the potential for abuse or mistakes with the lack of judicial oversight. But the trade-offs of treating these people as if they were citizens guaranteed all our due process rights would effectively hamstring the effort to be rid of them. So is there some simple way of vetting the legal status of those being deported? Given that congress has the power to create, fund, and reorganize the lower federal courts, maybe a specific temporary deportation court that is tasked with confirming (il)legal status rather than adjudicating criminal guilt?
That is a reasonable solution. For any US citizens who are part of these gangs, use RICO aggressively as has been done in recent cases. For foreign nationals in those gangs, establish some special “fast lane” in immigration court that would allow for rapid deportation hearings on national security grounds. Government has to demonstrate illegal status and present a reasonable basis (low evidentiary standard, but still a standard) to believe they are part of an organized criminal group or were involved in some illegal activity. Interestingly the latter part is comparable to what I think may be happening with Mahmoud Khalil, and I defended that kind of procedure in his case. Though for green card holders the burden of proof should be higher.
In the absence of this solution, I think we may agree to disagree. I say err on the side of the judicial circus rather than erring on the side of unchecked domestic exercise of wartime powers. I also hope (haven’t read enough yet) there is some judicial meta-evaluation of what is or isn’t justiciable under the Alien Enemies Act.
PS: I’m now following your Substack. The Khalil case drew me off the sidelines into Matt’s comment section for the first time in five years of following his site. You’re the best poster I’ve engaged with so far—logical, respectful, and principled. Maybe I’ll see you in your comments section soon.
I like how you’ve fleshed out my idea in your first paragraph. Seems a solid and reasonable middle ground.
On the second point, I can agree to disagree. I think part of our difference comes from the fact that I don’t see the Alien Enemies Act of 1798 as explicitly addressing “wartime powers.” Certainly that is historically how and when it’s been applied, but the “predatory incursion”…the phrase that hasn’t previously been invoked…does not sound to me like it was adopted with as a strictly “wartime” scenario. So I think the Act’s history-to-date notwithstanding, the powers provided by it are exercisable under exigent circumstance that are not restricted, or necessarily characterized, by war.
As to your P.S.—yay! I’m always happy for new subscribers and/or commenters. Welcome! Though I must tell you it’s a bit ironic we crossed paths since I can’t remember the last time I commented on Matt’s Substack…years, probably…and I spend almost no time reading this comment section. I just happened to on this occasion. ¯\_(ツ)_/¯
Well, I am glad these crazy polarizing times led to at least one constructive online exchange (it’s too rare). Looking forward to more.
And you’re right that the act has heretofore been invoked only in wartime, perhaps for good reason, but I am hopeful that some more restrictive definition of exigent circumstances as you call them can be applied to prevent future abuse/stretching of the idea of a predatory incursion. (And I have to hope that the current actions themselves are not abuse, though I can’t be 100% sure).
Yes, this case definitely poses some serious Constitutional issues... and Trump's DoJ is clearly on the wrong side of the law in this case, as he was in the Khalil case and for similar reasons IMHO.
Think of it like being on a jury. There’s a legal case being made, and you’re watching both sides present their arguments and evidence. Rather than prejudging, you’re laying out to yourself under what conditions (I.e., consistency with your deeply held principles) you might vote to convict or acquit (support or oppose) as the process plays out.
It’s that kind of mindset that I think Matt also has that made me respect him so much. It’s also the kind of mindset that allows someone to migrate between parties or political movements based on the particular issue (also an admirable characteristic of Matt that has endeared him at various points in his career to all parts of the political spectrum, except neocons I guess).
Well argued, and there’s a case to be made for it. My point is that its application to the predatory incursion aspect of the law is new, and requires us to trust the executive when it takes domestic law enforcement action on a national security issue in a way that is not justiciable (i.e., subject to judicial oversight). Strip away the identity of the president and the alien enemies and present that situation in the abstract, and you see how it poses risks.
And I’m on the record here arguing in defense (at least conditionally) of the Mahmoud Khalil detention, which has precedent and is justiciable. But to my point the left lost their minds over that case and now can’t make a helpful messaging distinction between it and this one which actually could pose some serious constitutional issues.
What are you talking about? 'Predatory incursion' was written in 1798. The fact that it hasn't invoked as justification for applying the Alien Enemies Act is irrelevant. If you argue otherwise, you are in effect stating that a law cannot be applied as written unless it was previously applied. So stupid.
As to your point about [____________] requiring us to 'trust the executive' ...you conveniently left out the entity doing the requiring. Really, what are you saying here? You can't be so fatuous as to claim the law requires us to trust the executive. So what then? Who or what, exactly, requires that we trust the guy we ALREADY entrusted when we gave him our vote? I mean, you know how this works right? We trust our elected official with our votes BEFORE they take office and take action. We don't put them in office and then say, "Whoa big fella. We have to see if we trust you first."
This is all such nonsense. The Judge ordered the plane turned around because he's a partisan hack. Stop pretending otherwise. And stop pretending that it's an open question with our Constitution as to whether our President is powerless to deal with illegal immigrant criminals (redundant, I know) whom nary a single citizen wants as a neighbor.
Oh man, here we go. Just a week ago I was arguing in defense of the administration’s detention of Mahmoud Khalil (or at least attempting to explain why it was possibly justified) to some emotional leftist partisans. Let me try to explain why I see this case differently again. (And, by the way, it’s possible to simultaneously believe, as I do, that Boasberg is a partisan hack AND that the administration is taking a big leap. Nothing prevents those two things from being true together — that was JD Free’s original point).
A declared international war, in which this act has previously been applied, is a very high, clearly interpretable bar for which to invoke domestic executive law enforcement powers that are not reviewable by courts. So, if we are at declared war with Japan, an admin can use the act to take swift and decisive action against Japanese nationals in the country who could be spies, saboteurs, etc. Hence how this was applied in WWII (and I’m graciously overlooking all the other concerns about the use of this in wartime and assuming it’s not executive overreach).
Once we step into the predatory incursion side of it, there is necessarily some interpretation of what that means by an administration, unlike the clear standard of a declared international war. Administrations interpret the meaning of laws all the time. Fine. But here, no court has the ability to rule whether their interpretation of the law is constitutional (or even remotely logically sensible).
To illustrate, you may be persuaded by the Tren de Aragua reasoning for a predatory incursion by Venezuela. But it requires you to trust the administration’s story because no court can verify it by demanding the production of evidence. What if, in 2032, President Ocasio-Cortez declares that we are victims of a predatory incursion by a Zionist conspiracy headed by Israeli Prime Minister Itamar Ben-Gvir? Does this Trump precedent allow future President Ocasio-Cortez to mass deport Israeli citizens? No court could intervene. That’s the trust (ie ability to use force unilaterally on our own soil) we are giving the executive here.
I am sympathetic to your cautionary approach. But you are arguing a slippery slope that is pretty easy to define and avoid.
If your proposed Zionists arrived inside our borders and began threatening American citizens with bodily harm and death, raping and trafficking children and women, taking over apartment buildings and extorting rent and otherwise threatening the health and well-being of citizens inside our borders, then absolutely we could call it a predatory incursion and deport them. The word "predatory" is carrying the load here, and violence and crime against citizens by non-citizens who entered the country illegally is a PERFECT justification for deportation.
Your slippery slope argument would be more compelling if the TdA were here minding their own business and trying to contribute to our society. But they manifestly are not. They are vicious gang members who are here to spread their crime network. We don't need a court to give the president, who heads the single branch of our federal government invested with securing our borders and enforcing our laws, permission to round them up and remove them from our country. It is an obvious response to a problem that should never have been allowed to happen.
I agree on a factual basis with everything people are saying about TdA. And as I said above, it’s a persuasive case from the admin.
The lack of justiciability is the crux of the problem. An administration has absolutely no burden of proof to reach if the Alien Enemies actions never have to reach judicial scrutiny. No requirement to prove the removed people have made a predatory incursion or are even nationals of the enemy country. They can, but have no requirement to, make a case in the “court of public opinion” which as we know is more mercurial than all but the most hackish judges.
And to your last point, yes, the executive has authority to protect borders and enforce laws, but those domestic actions are also subject to judicial oversight. If we grant the executive the ability to exercise wartime powers on our home soil with no judicial oversight, that is not a slippery slope so much as a wide open door for future abuse. The closest comparison I can make is the warrantless surveillance of the type Snowden exposed.
And lest I sound like I’m just criticizing without offering solutions, maybe I’m missing why something like this can’t be done against TdA:
https://www.justice.gov/opa/pr/fourteen-members-and-associates-violent-transnational-motorcycle-gang-indicted-rico-and
I think the argument against that RICO solution would be the time and cost to the taxpayer, especially given the likelihood there would be anti-Trump activist lawyers trying to tie up every court case. It would turn the effort to deport these criminal aliens into an expensive judicial circus that drags on for months or years. At the same time I totally get your concern about the potential for abuse or mistakes with the lack of judicial oversight. But the trade-offs of treating these people as if they were citizens guaranteed all our due process rights would effectively hamstring the effort to be rid of them. So is there some simple way of vetting the legal status of those being deported? Given that congress has the power to create, fund, and reorganize the lower federal courts, maybe a specific temporary deportation court that is tasked with confirming (il)legal status rather than adjudicating criminal guilt?
That is a reasonable solution. For any US citizens who are part of these gangs, use RICO aggressively as has been done in recent cases. For foreign nationals in those gangs, establish some special “fast lane” in immigration court that would allow for rapid deportation hearings on national security grounds. Government has to demonstrate illegal status and present a reasonable basis (low evidentiary standard, but still a standard) to believe they are part of an organized criminal group or were involved in some illegal activity. Interestingly the latter part is comparable to what I think may be happening with Mahmoud Khalil, and I defended that kind of procedure in his case. Though for green card holders the burden of proof should be higher.
In the absence of this solution, I think we may agree to disagree. I say err on the side of the judicial circus rather than erring on the side of unchecked domestic exercise of wartime powers. I also hope (haven’t read enough yet) there is some judicial meta-evaluation of what is or isn’t justiciable under the Alien Enemies Act.
PS: I’m now following your Substack. The Khalil case drew me off the sidelines into Matt’s comment section for the first time in five years of following his site. You’re the best poster I’ve engaged with so far—logical, respectful, and principled. Maybe I’ll see you in your comments section soon.
I like how you’ve fleshed out my idea in your first paragraph. Seems a solid and reasonable middle ground.
On the second point, I can agree to disagree. I think part of our difference comes from the fact that I don’t see the Alien Enemies Act of 1798 as explicitly addressing “wartime powers.” Certainly that is historically how and when it’s been applied, but the “predatory incursion”…the phrase that hasn’t previously been invoked…does not sound to me like it was adopted with as a strictly “wartime” scenario. So I think the Act’s history-to-date notwithstanding, the powers provided by it are exercisable under exigent circumstance that are not restricted, or necessarily characterized, by war.
As to your P.S.—yay! I’m always happy for new subscribers and/or commenters. Welcome! Though I must tell you it’s a bit ironic we crossed paths since I can’t remember the last time I commented on Matt’s Substack…years, probably…and I spend almost no time reading this comment section. I just happened to on this occasion. ¯\_(ツ)_/¯
Well, I am glad these crazy polarizing times led to at least one constructive online exchange (it’s too rare). Looking forward to more.
And you’re right that the act has heretofore been invoked only in wartime, perhaps for good reason, but I am hopeful that some more restrictive definition of exigent circumstances as you call them can be applied to prevent future abuse/stretching of the idea of a predatory incursion. (And I have to hope that the current actions themselves are not abuse, though I can’t be 100% sure).
I take your point. These are muddy times indeed.
Yes, this case definitely poses some serious Constitutional issues... and Trump's DoJ is clearly on the wrong side of the law in this case, as he was in the Khalil case and for similar reasons IMHO.
Think of it like being on a jury. There’s a legal case being made, and you’re watching both sides present their arguments and evidence. Rather than prejudging, you’re laying out to yourself under what conditions (I.e., consistency with your deeply held principles) you might vote to convict or acquit (support or oppose) as the process plays out.
It’s that kind of mindset that I think Matt also has that made me respect him so much. It’s also the kind of mindset that allows someone to migrate between parties or political movements based on the particular issue (also an admirable characteristic of Matt that has endeared him at various points in his career to all parts of the political spectrum, except neocons I guess).