by Lawrence Kadish
What judges do have an obligation to do is to "to imprison, or otherwise secure such alien," not to obstruct their deportation
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The only matter about which there seems no dispute in President Donald J. Trump's administration having officially designated Tren de Aragua and Mara Salvatrucha (MS-13) as Foreign Terrorist Organizations, is that they are a threat to public safety.
The text of the Alien Enemies Act of 1798, written 10 years after the Constitution was ratified, states:
§21 Restraint, regulation, and removal
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion OR predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.
(R.S. §4067; Apr. 16, 1918, ch. 55, 40 Stat. 531. Emphases added)
The decision to deport alien enemies when a "predatory incursion is perpetrated, attempted, or threatened," is clearly mandated to the president, who recently ordered deportations of members of Venezuela's Tren de Aragua, and Latin America's MS-13.
If anyone was deported unjustly, he can file from abroad for a writ of habeas corpus, to protest having been unjustly imprisoned.
District courts are answerable to their districts, not to the nation or to any other of the three distinctly separate branches of government. By definition, the mandate of a district court is to its district and the allegedly aggrieved parties who reside there, not to the entire nation or to a separate branch of government.
An appellate court is answerable to several states. Only the Supreme Court has jurisdiction over the entire United States. Judge James Boasberg of the US District Court for the District of Columbia would therefore appear to have ruled for the plaintiffs in a case where they lack standing: the right to sue.
What judges do have an obligation to do is to "to imprison, or otherwise secure such alien," not to obstruct their deportation:
§23. Jurisdiction of United States courts and judges
After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.
(R.S. §4069. Emphases added)
The recent deportation of illegal migrants back to Venezuela, negotiated by Secretary of State Marco Rubio, raises the further question of setting a possible legal precedent for District Court Judges to have standing -- the right to judicially intervene -- in federal foreign policy.
"There's a pattern whereby these district court judges are trying to usurp the responsibility of the president in the national security area," according to former Attorney General William Barr. "The president is absolutely right to be frustrated and concerned about the way the courts are handling this. The Constitution gives the president the power to make the judgments about how we deal with foreign nationals when we are animated by national security concerns," he continued. "It's his call, not a district court judge's call."
The administration's deportation case, now in the appellate court, will presumably be sent to the Supreme Court for final adjudication, and it is assumed they will accept the case for review. Until then, it would seem that Trump is well within the rights granted to the president under Article II of the Constitution.
Lawrence Kadish serves on the Board of Governors of Gatestone Institute.
Lawrence Kadish
Source: https://www.gatestoneinstitute.org/21508/alien-enemies-act-public-safety
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