This is Part IV of a definitive article on the current state of the “Rule of Law” in the United States written by one of the country’s top jurists, J. Michael Luttig. It is a little too long for one blog, so I will publish it in five installments; that serves two purposes: The first is that it makes it palatable in size, and the second is that publishing it at least twice will have more impact on all of us.
“The president has provoked a constitutional crisis by defying orders of the federal courts in his efforts to send undocumented immigrants overseas. To justify his mass deportations, the president has invoked the Alien Enemies Act. But he does not have the authority under that law to deport immigrants. He has done so nonetheless, and without even a thought of providing the deportees the due process to which they are constitutionally entitled. We already know that some of the immigrants were deported unlawfully.
Originally part of the Alien and Sedition Acts of 1798, the Alien Enemies Act authorizes a president to deport foreign nationals from countries with which the United States is at war or that have invaded (or threatened to invade) the United States. The president claims that the U.S. has been “invaded” by undocumented immigrants, justifying their immediate deportation without due process of law.
Nearly every lower federal court to address this wartime law’s applicability has rejected Trump’s reliance on this law for his illegal deportations. Recently, a federal court in Texas roundly rejected Trump’s argument that alleged members of the Venezuelan gang Tren de Aragua could be deported on the authority of the Alien Enemies Act, finding that the “plain, ordinary meaning” of the law’s requirement of an “invasion” of or a “predatory incursion” into the United States refers to an invasion or incursion by military forces. Tren de Aragua is obviously not a military power or force, the court said.
Earlier this month, two other federal courts, in Colorado and New York, also stopped the administration from deporting immigrants under the Alien Enemies Act. The federal court in Colorado said there was no foreign nation or government invasion or predatory incursion to justify the administration’s deportations. “Respondents’ arguments are threadbare costumes for their core contention: ‘As for whether the Act’s preconditions are satisfied, that is the President’s call alone; the federal courts do not have a role to play.’” Said the judge, “This sentence staggers. It is wrong as a matter of law and attempts to read” Article III “out of the Constitution.”
The Supreme Court was highly unlikely ever to uphold Trump’s deportations under the Alien Enemies Act, even before the White House Deputy Chief of Staff Stephen Miller last Friday announced in a blatantly anti-constitutional statement that Trump is “actively looking at” suspending the Constitution’s writ of habeas corpus.
The very purpose of the “privilege” of the writ of habeas corpus is to provide these deportees and detainees the right to challenge their deportations and detentions. Trump doesn’t have the power to suspend habeas corpus. Article I of the Constitution provides that the writ of habeas corpus “shall not be suspended, unless … in Cases of Rebellion or Invasion.” Illegal immigration to the U.S. is not even arguably an “invasion” that would justify suspension of the writ of habeas corpus. The Supreme Court is now on clear notice of Trump’s definition of rebellions and invasions—and will have to take this into account when he uses the same logic to justify his patently unconstitutional deportations.
The case of Kilmar Abrego Garcia illustrates perfectly why Trump’s deportations run afoul of the Constitution. In March, Abrego Garcia was arrested, mistakenly deported to El Salvador, and imprisoned. He remains imprisoned in El Salvador to this day, despite a direct order from the Supreme Court that Trump “facilitate” his release and return him to the United States. As a Maryland federal judge, Paula Xinis, put it five days after the Court’s ruling, “To date, what the record shows is that nothing has been done. Nothing.”
Late last month, in an interview with ABC News, the president acknowledged that he “could” get Abrego Garcia back. He just refuses to do so. Abrego Garcia could well spend the remainder of his life unconstitutionally imprisoned in El Salvador because of Trump’s defiance of the Supreme Court and the Constitution.
Trump continues to lambaste the federal courts for enforcing the Constitution, pronouncing that he should be able to deport all undocumented immigrants without any trial to determine whether their deportation would be in violation of the Constitution. “I hope we get cooperation from the courts, because you know we have thousands of people that are ready to go out, and you can’t have a trial for all of these people,” Trump told reporters in the Oval Office. “It wasn’t meant. The system wasn’t meant. And we don’t think there’s anything that says that. We’re getting them out, and a judge can’t say, ‘No, you have to have a trial. The trial is going to take two years,’” Trump went on. “We’re going to have a very dangerous country if we’re not allowed to do what we’re entitled to do.”
HE COULDN’T BE MORE WRONG. THE SYSTEM ACTUALLY WAS “MEANT” TO PROVIDE DUE PROCESS, AND IT IS OF COURSE THE CONSTITUTION OF THE UNITED STATES THAT SAYS SO. IT IS FOR THAT REASON THAT JUDGES CAN INDEED SAY, “YOU HAVE TO HAVE A TRIAL,” AND PRESIDENTS ARE SUPPOSED TO LISTEN. THAT’S WHAT RULE BY LAW, NOT BY MEN, MEANS. (My caps, Luttig’s words)
After these first three tyrannical, lawless months of this presidency, surely Americans can understand now that Donald Trump is going to continue to decimate America for the next three-plus years. He will continue his assault on America, its democracy, and rule of law until the American people finally rise up and say, “No more.”
From across the ages, Frederick Douglass is crying out that we Americans never forget: “The limits of tyrants are prescribed by the endurance of those whom they oppress.”
