Go Ahead, Deport Them - I Don't Give a Damn
But remember: bad facts make for bad law.
There is a cafe around the corner from where I live. Most every evening, I can be found there, at least for a little while. I am the “OG Regular” to the point that other regulars will move to give me my preferred seat. It’s a great place to hang out.
And yesterday, things went down just like that — two regulars were there when I came in and they moved down to give me my preferred seat at the end of the bar. But things took a dark turn. I had been reading about a group of alleged members of the Venezuelan gang Tren de Aragua, that the Trump administration had deported to El Salvador, without due process and in apparent defiance of a federal district court judge’s order. El Salvador has agreed to incarcerate these men, despite there having been no determination that they had broken any law, for one year on the U.S. taxpayer’s dime, and apparently, “renewable.”
Trump invoked a law from 1798 — the Alien Enemies Act — to allow for the deportations without a hearing, and based solely on citizenship. The law has only been invoked three times, most recently as the basis for the internment of Japanese Americans during World War II.
Lovely lineage, that.
There’s a problem with Trump’s usage of the Act — we aren’t at war (yet) with Venezuela! Here’s the relevant text of the statute:
That whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.
While Trump claims that we are subject to an “invasion” from undocumented immigrants, that claim isn’t supported by the facts at the border, and there is no evidence that any of this is being directed by Venezuela.
Lawyers for the men went to court and Chief Judge of the District Court for the District of Columbia, James Boasberg, issued a Temporary Restraining Order, prohibiting the men from being deported. In response, the Trump Administration claimed that the flights taking them to El Salvador were “already outside of U.S. airspace” and therefore beyond the reach of the judge’s order.
Of course, that’s not how this works. The targets of the order — the U.S. government — are not outside the reach of the court, and proceedings are continuing. (The judge was not pleased.) Watch this space.
But the point of this piece is not the illegality of the Trump Administration’s actions. It is my friend’s reaction.
“Fuck ’em [referring to the alleged gang members], I’m glad they are gone.”
“Hold on,” I said, “there is no evidence that they are gang members. And even if there were, being in a gang is not a crime, and they haven’t been convicted of anything. They have rights, and those rights were ignored, a judge’s order was ignored, and that isn’t how this country operates.”
“I don’t care,” he countered, “these are bad guys, and getting them out of the country is a good thing.”
So there’s that.
In law school you learn an expression: “Bad facts make for bad law.” Which is to say, when the facts on the ground are bad enough, bad legal outcomes often occur. (Think back to the internment of Japanese Americans in WWII. Today, everyone agrees that was a terrible miscarriage of justice, but in the war time hysteria of the day, bad law — Korematsu — happened.)
This is all by design. The ghouls running the Trump Administration targeted a group of men — some of whom might well be criminals, but no one knows that — labeled them “alien terrorists” knowing that most people won’t care about them, and kicked them out of the country, so the public can conclude, that “is a good thing.”
But it isn’t. It is illegal and unconstitutional. We all need to care, or we are going to go the way of Germany in the 1930’s — that didn’t turn out so well.
In community, forward!
Notes:
Thanks for posting the text of the law. I noticed that one condition for invoking the law is "invasion or predatory incursion...by any foreign nation or government." Obviously no state of war exists between us and Venezuela, but even if one claims immigration is an invasion (it's hard to make a case for predation or incursion), clearly it's not an "invasion" by a foreign nation or government. All these originalists claim that the text is sacred, except when it's not.