Divided D.C. Circuit Panel Nixes Judge Boasberg's Criminal Contempt Order Against Trump Administration
Judge Katsas and Judge Rao disagreed on the reasons, but both agreed that Judge Boasberg overstepped; Judge Pillard dissented.
Alien Enemies Act
My New Dispatch Article on Judicial Review of Emergency Powers
It makes the case for strong judicial review of executive invocations of sweeping emergency powers.
Two Cases That Demonstrate the Incoherence of Trump's Immigration Policy
The Trump administration cut a deal with Venezuela to return a triple murderer to American shores while it tries to deport someone accused of much less.
Trump's Alien Enemies Act Deportees Sent Back to Venezuela in Shameful Hostage Deal [Updated]
After being ilegally deported and imprisoned in El Salvador, they will now be sent back to the oppressive regime they fled in the first place, in exchange for ten Americans detained by the Venezuelan government.
Life as an Academic Defender of the Intuitively Obvious
Academics are supposed to discover nonobvious, counterintituitive truths. But, especially in recent years, much of my work involves defending positions that seem obvious to most laypeople, even though many experts deny them.
Courts Can Check, and Have Checked, Executives' Military Judgment
Katherine Yon Ebright and Leah Tulin of the Brennan Center make the case against judicial deference to Trump's invocation of the Alien Enemies Act of 1798.
Federal Court Rules Against Trump's "Invasion" Executive Order
But, notably, the court chose not to rule on the issue of what qualifies as an "invasion."
Trump Says the Courts Have No Business Questioning His Dubious Definition of 'Alien Enemies'
The U.S. Court of Appeals for the 5th Circuit is considering whether the president properly invoked the Alien Enemies Act to deport alleged gang members.
Supreme Court Issues Terrible Shadow Docket Decision Lifting Injunction Against "Third Country" Deportations of Migrants Without Due Process
The ruling includes no analysis. Justice Sotomayor's dissent has a compelling explanation of why it is wrong.
Federal Court Rightly Invalidates Trump's Illegal Federalization of California National Guard Troops
Trump's policy here is yet another example of abusive invocation of emergency powers.
The Trump Administration Is Escalating an Immigration Crisis It Promised To Resolve
The border is no longer the focus. Now, the White House wants you to believe that the crisis extends to nail salons, hardware stores, farms, and restaurants across the country.
My New UnPopulist Article on Synergies Between Litigation and Political Action in Resisting Trump
The article describes how the two can be mutually reinforcing, building on lessons from previous episodes in constitutional history.
Kilmar Abrego Garcia Back in the United States
The Trump Administration returned the illegally deported migrant from imprisonment in El Salvador after repeatedly claiming they could not do so.
A Federal Judge Orders Relief for Alleged Gang Members Deported and Imprisoned Without Due Process
Without such intervention, he warns, the government "could snatch anyone off the street, turn him over to a foreign country, and then effectively foreclose any corrective course of action."
Our Fifth Circuit Alien Enemies Act Amicus Brief
The brief was filed on behalf of the Brennan Center, the Cato Institute, law-of-war scholar Prof. John Dehn, and myself.
The Alien Enemies Act Doesn't Say What Trump Claims It Says
Father of the Constitution James Madison made a distinction between alien enemies and alien friends.
The Case Against Judicial Deference to Executive Branch "Factual" Determinations in Alien Enemies Act Cases
Legal scholar Rebecca Ingber offers some strong arguments against deference in this context.
Report: 50 Venezuelans Sent to Salvadoran Prison Entered the U.S. Legally, Contrary to White House Claims
"It's not just one or two administrative errors," says the Cato Institute's David Bier.
Most Migrants Deported to Imprisonment in El Salvador Under the Alien Enemies Act Had no Criminal Record and Many had Entered the US Legally
A new Cato Institute study by David Bier presents the most extensive available evidence on these points.
Serious Immigration Law Enforcement Means Serious Destruction to American Liberty
Stephen Miller's trial balloon about abrogating habeas corpus in immigration cases shows how any libertarian with pragmatic intelligence should reject so-called "libertarian" arguments for strict immigration laws.
Fourth Circuit Rules Against Trump Administration in Alien Enemies Act Case
In a 2-1 ruling, the Court ruled Trump's invocation of the Alien Enemies Act cannot supersede a settlement barring deportation of a group of migrants. One judge also held the AEA was invoked illegally.
Lee Kovarsky, D. Theodore Rave, and Steve Vladeck on Class Actions and the Alien Enemies Act Litigation
Kovarsky and Rave defend the use of class actions in AEA habeas cases. Vladeck highlights the significance of the Supreme Court's grant of an injunction to a "putative class" of AEA detainees.
Supreme Court Issues Ruling Temporarily Blocking Alien Enemies Act Deportations
The ruling held that migrants detained under AEA had not been given adequate notice of their potential deportation. It also reflects the Court's growing distrust of the Trump Administration.
Supreme Court Enjoins Summary Removal of Alleged Tren de Aragua Members under Alien Enemies Act
A majority of the justices seem unconvinced the Administration was prepared to provide the process that was due. Justices Alito and Thomas dissent.
My New Lawfare Article "Trump's 'Emergencies' Are Pretexts for Undermining the Constitution"
The article explains why these claims to emergency powers are illegal and dangerous, and how to stop them.
Trump (Partially) Wins an Alien Enemies Act Case
In a badly flawed decision, a federal district court ruled that Trump can invoke the AEA because the Tren de Aragua drug gang's activities amount to a "predatory incursion."
Colorado Federal District Court Issues Additional Alien Enemies Act Ruling Against Trump
The court instituted a preliminary injunction against the Administration's use of the Act to deport Venezuelans.
Trump Administration Makes Damaging Admissions on Alien Enemies Act and Deportations
Trump admits he could return migrant illegally deported to El Salvador. And an intelligence community report concludes the Tren de Aragua drug gang isn't controlled by the Venezuelan government.
Yet Another Federal Court Rules Against Trump in an Alien Enemies Act Case
The Southern District of New York rules Trump invoked the Act illegally, because there is no "invasion" or "predatory incursion."
Federal Court Issues Two Important Rulings Against Trump in Alien Enemies Act Case
Federal district court Judge Fernando Rodriguez ruled that Trump invoked the AEA illegally, and that migrants threatened with deportation under the Act can file class action habeas petitions.
New York Times Symposium on "A Road Map of Trump's Lawless Presidency"
I was one of 35 legal scholars who took part.
Free Press Symposium on "Is Donald Trump Breaking the Law?"
The degree of agreement among participants with major ideological diferences is striking.
Supreme Court Issues Unusual Order in Alien Enemies Act Deportation Case
The order temporarily blocks AEA deportations. It likely also reflects the Court's growing frustration with the Trump Administration.
ACLU Files Habeas Class Action to Block Alien Enemies Act Deportations
This case has crucial implications for the ability of migrants to effectively challenge illegal AEA deportations.
Rights and Wrongs of the Supreme Court's Ruling in the Alien Enemies Act Case
The Supreme Court oveturns lower court decisions temporarily barring AEA deportations, but also emphasizes that detainees are entitled to due process, and that AEA deportations are subject to judicial review.
Lee Kovarsky on the Venue Issue in the Alien Enemies Act Case
A leading expert on habeas corpus explains why the Trump Administration is wrong to claim the case must be heard in Texas, rather than Washington, DC.
DC Circuit Upholds District Court Order Blocking Deportations Under The Alien Enemies Act
The 2-1 ruling is procedural, but strongly suggests the majority judges also reject the Trump administration's position on the merits.
Federal Court Rules Migrants Have Right to Hearing to Challenge Alien Enemies Act Deportations
Judge Boasberg ruled the migrants are entitled to due process in determing whether they really are "alien enemies" covered by the Act.
Two Audio Interviews About the Alien Enemies Act Litigation
Links to audios of a Cato Institute podcast and an interview with ABC News (Australia).
National Constitution Center Podcast on the Alien Enemies Act and Mahmoud Khalil Immigration Cases [Updated]
The participants were Adam Cox (NYU) and myself.
How Trump's Alien Enemies Act Deportations Violate the Due Process Clause of the Fifth Amendment
The people deported are incarcerated in Salvadoran prisons without any due process whatsoever.
Trump Administration Likely Violated Court Order in Alien Enemies Act Case
They used the Act to deport some 137 Venezuelan migrants to El Salvador even after a federal court issued a temporary restraining order blocking such action.
My US News and World Report Article on Trump's Dictatorial Immigration Power Grabs
The article is coauthored with Cato Institute scholar David Bier.
Trump May Soon Try to Use the Alien Enemies Act as a Tool for Deportation
His apparent plan to do so is illegal and would set a dangerous precedent if allowed to stand.
My New Just Security Article On Trump's "Invasion" Executive Order and its Dangerous Implications
The article explains why the order is unconstitutional and why letting it stand would be very dangerous, including for the civil liberties of US citizens.
More on "Invasion," the Alien Enemies Act, and the Political Question Doctrine
Legal scholar Michael Ramsey points out another way courts could reject Trump's plan to use the act as a tool for peacetime mass deportation.
Trump's Plan to Use the Alien Enemies Act of 1798 as a Tool for Mass Deportation
The plan is illegal. But courts might refuse to strike it down based on the "political questions" doctrine.
