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.
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.
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.
But, notably, the court chose not to rule on the issue of what qualifies as an "invasion."
The ruling gets several important issues right - and one big one wrong.
Trump's policy here is yet another example of abusive invocation of emergency powers.
The brief was filed on behalf of the Brennan Center, the Cato Institute, law-of-war scholar Prof. John Dehn, and myself.
Legal scholar Rebecca Ingber offers some strong arguments against deference in this context.
A new Cato Institute study by David Bier presents the most extensive available evidence on these points.
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.
I have long warned of this dangerous implication of the argument that illegal migration qualifies as "invasion."
The court instituted a preliminary injunction against the Administration's use of the Act to deport Venezuelans.
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.
The Southern District of New York rules Trump invoked the Act illegally, because there is no "invasion" or "predatory incursion."
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.
The degree of agreement among participants with major ideological diferences is striking.
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.
The participants were Adam Cox (NYU) and myself.
The article is coauthored with Cato Institute scholar David Bier.
His apparent plan to do so is illegal and would set a dangerous precedent if allowed to stand.
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.
Several of his announced actions are likely to be illegal, especially some related to immigration.
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.
The plan is illegal. But courts might refuse to strike it down based on the "political questions" doctrine.
I debated former Arizona Attorney General Mark Brnovich over various issues related to the southern border, particularly whether illegal migration and cross-border drug smuggling qualify as an "invasion" under the Constitution.
The invasion argument is still being litigated in another case.
Leading constitutional law scholars Larry Solum and Mark Tushnet opine on how we might answer this question.
The ruling builds on the same court's two prior decisions to the same effect.
Texas is wrong to equate illegal migration and drug smuggling with invasion. If accepted by courts, the argument would set a dangerous precedent.
The state's position is at odds with the text and original meaning of the Constitution and would set a dangerous precedent if accepted by federal courts.
The ruling has the most extensive discussion of the meaning of "invasion" in the Constitution ever included in a court decision.
Legal scholars Frank Bowman and Steve Vladeck weigh in on Texas's dangerous argument.
The argument is badly wrong, and would set a dangerous precedent if ever accepted by courts.
The ruling is mostly based on statutory issues, but also covers the "invasion" question.
The court ruled that the definition of "invasion" is a political question, and that Texas therefore could not rely on the Invasion Clause to justify placing buoys in the Rio Grande River in defiance of federal law.
If Texas is right to argue that illegal immigration and cross-border drug smuggling qualify as "invasion," then the writ of habeas corpus can be suspended at any time - thereby enabling executive detention without trial.
The argument is contrary to the text and original meaning of the Constitution, goes aginst precedent, and would have absurd consequences if accepted by courts.
I have posted his response to my previous post, along with a rejoinder.
A critique of claims that the federal government and the states can use military force to prevent immigration, based on constitutional powers to prevent "invasion."
