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PaperclipPerfector  16d ago (text post)   29684 thread views

Culture War Roundup for the week of March 17, 2025

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A potentially more interesting case is the recent deportation of alleged Venezuelan gang members. A US district court ordered that the deportations not proceed for 14 days while it hears arguments about the legality of the deportations under the Alien Enemies Act, but that order may have been issued after the gang members had already left US soil. I assume they will try to deport more people under the Act and that these cases will go up to the Supreme Court as well.

Courtlistener docket is here. Alien Enemies Act is codified as 50 USC Chapter 3. Trump's Executive order is here.

On the basis of the evidence so far (which I think is just what is in the EO itself) I am skeptical that the actions of Tren de Aragua satisfy the statutory requirement of being an "invasion or predatory incursion" that is "perpetrated" by a "foreign nation or government." There's a hearing scheduled for an hour or so from now and I will be pretty surprised if it does not end in the beginning of contempt proceedings for some officials. Just Security has an article with a pretty detailed timeline.

ETA:

Trump announced in a post last night that he was considering voiding the last minute preemptive Biden pardons of Fauci, members of January 6 House committee, and others, because an "autopen" was used to sign the pardons. Presidential authority to grant pardons is very broad, and apparently autopen has been used by prior presidents; looks like a losing case if it goes before the Supreme Court.

Trying to imagine the logistics of how this plays out. Trump's DOJ presumably charges one or more pardoned individuals with a crime within the scope of the pardon. They move to dismiss (or equivalent) on the basis they were pardoned. DOJ claims the pardons are not valid. Defendants produce whatever constitute the official pardon documents, various presidential announcements of the pardons etc. DOJ's rebuttal is ???. What could possibly go in the blank such that a court would permit the prosecution to move forward? I am confident that a court is not going to permit an investigation into a President's state of mind to try and determine a pardon's validity.

There's a hearing scheduled for an hour or so from now and I will be pretty surprised if it does not end in the beginning of contempt proceedings for some officials

Looks like it was postponed. As I wrote elsewhere, I think the whole thing ends up being a very minor tempest, although I could be wrong.

I’m not sure how justiciable this case is. See Ludecke v Watkins.

I think that is easily distinguishable. The United States is definitely not in a state of "declared war" with Venezuela (or any other government or foreign nation) the way it was with Germany in 1948.

It was in a state of war with Germany in 1948?

The whole point of that opinion was that state of war is non justiciable. That is, if the president determines there is a state of war then there is a state of war.

I agree factually this is different but if you take that precedent seriously then I’m not sure you get to a different answer.

The United States was occupying Germany through May 1949. Anyway it cannot be that no determinations under the act are reviewable. If it is un-reviewable whether someone the president purports to deport is an enemy alien then the law authorizes the president to deport United States citizens! A plainly unconstitutional outcome.

The formal peace treaty with Germany legally ending WW2 wasn't signed until German Reunification in 1990. The Allies withdrew from most of Germany voluntarily in 1949, but remained in belligerent occupation of Berlin. West Germany never claimed sovereignty over West Berlin. East Germany's claim to East Berlin was not recognised by the UK, France or the USA, and the Soviet Union agreed not to press the issue and that the four occupying powers' troops could behave as if Berlin was still under joint occupation.

So "The US was still legally at war with Germany in 1948" was uncomplicatedly correct. The SCOUTS verdict was that if a legal state of war exists, the question of whether or not it is a real war allowing the invocation of Presidential war powers is non-justiciable.

West Germany never claimed sovereignty over West Berlin

Interesting! If I understand the Wiki article right then West Berlin representatives in the W-Germany parliament only had advisory roles and all W-Germany laws were “shadowed” by W-Berlin senate, with a few exceptions like there was no draft in Berlin had no army. Theoretically they could have gone the independent way like Singapore.

They couldn't have gone the way of Singapore without the permission of the occupying powers (arguably including the Soviet Union). The West Berlin senate was an institution of non-sovereign self-government with similar status to a Territorial legislature in the US. There was even a US Court for Berlin with a superordinate jurisdiction to the local courts established by the senate, although it only ever heard one case - as an amusing trivia point it is the only US Court for a place beginning with "B", as no state name does.

The Allies handed sovereignty over Berlin to the reunified Germany by treaty - the occupied Berliners didn't get a say in it.

I think that is a very pale reading of the case.

V-E day already occurred! There was a cease fire and surrender! Men kissed nurses on the streets of NY! The war was over. Nobody but nobody in 1949 was talking about the on going war effort. If you look at the history books, they will tell you the war ended in 1945.

There was a real question of whether the president could years after hostilities ended deport someone under the AEA. After all, the obvious reason for the act was to protect the homeland against a fifth column of sorts and in 1949 no one was concerned about that.

Despite all of that, the court said “we will not review the president’s claim.” That is very deferential.

Indeed Trump’s actions are clearly more within the ambit of what the AEA was worried about (ie foreign actor exerting physical control / damage to the homeland) compared to the post WWII fact pattern of precedent.

Could you point to the technicalities and say Ludecke is not controlling? Sure. But if you take that case seriously, then it is hard to argue the president doesn’t have the power to declare an invasion in this case.

I do agree the class question is trickier.

That question (ie is the person in the class) seems to be justiciable but potentially waived.

Tbf this isn’t a common law and no one has a strong grounding on it

No the statute isn’t limited to whether congress declared war. Yes in Ludecke there was a war declared and the question was when the war ended. The court took a rather broad view as to who gets to answer that question (ie the executive and not the courts). The logic of Ludecke seemingly would apply for an invasion determined by the Executive.

I agree that the question of whether the aliens are in the particular class is justiciable but arguably ACLU waived that claim when saying the plaintiffs were all aliens from Venezuela.

The class is members of Tren de Aragua. Not all aliens from Venezuela - Trump isn't claiming that the US is at war with Venezuela. Under the WW2-era jurisprudence whether any given alien is a member of the class is justiciable, including via habeas corpus. That is why Trump had to ship the detainees out of the jurisdiction before a court could rule on what is going on - if he has to litigate each detainee's membership of Tren de Aragua individually then the policy goal of the whole scheme is not achieved.

I agree there is a real question on class (I noted it in my post).

I am sympathetic to the Buekle (sp?) approach: when the gang members literally print on themselves who they are the risk of a false positive is extremely low and individual adjudication should not be necessary since shock and awe is needed.

I’m not sure to what degree the founders would have contemplated an international crime ring that sells deadly drugs and enforces their terf with extreme violence. Sure they’re not a state in the sense of a flag, national anthem, and Olympic team, but on the other hand by such a measure neither are, Palestine, Islamic State, Tibet, or Transnitria. If members of a group affiliated with Hamas infiltrated the United States, then is the Alien Enemies Act out of the question? Palestine isn’t a state per the UN, so Hamas isn’t the head of a recognized government. So, could we do something here?

The same session of congress that passed the Alien Enemies Act also passed the Alien Friends Act (which expired and is no longer on the books) which authorized the President to deport any alien that “he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof”, so it seems like they contemplated a difference between insidious conduct that just happens to be committed by an alien, and an alien hailing from a hostile foreign nation.

I don't understand what the "founders" have to do with anything. We are not interpreting some obscure or abstract constitutional provision. The Alien Enemies Act is a statute passed by the Fifth Congress of the United States in 1798. It uses the words "government" and "nation." If Congress wanted it to mean something else they have had over 200 years to change it.

Given that they had direct experience with various forms of piracy, I think this claim is hilariously ahistorical.

Pirates had a defined status at the time- hosti humani generis, enemies of everyone, for whom jurisdiction didn’t apply.

Absolutely. And the AEA wasn't part of the response to them.

Sure they’re not a state in the sense of a flag, national anthem, and Olympic team, but on the other hand by such a measure neither is Palestine, Islamic State, Tibet, or Transnistria.

Definition of "state" under the Montevideo Convention:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Using that definition, Wikipedia includes Palestine and Transnistria in its list of sovereign states. The Islamic State and the cartels fail item b, while Tibet fails item d. (On the same page, Wikipedia does explicitly note that Palestine "has no agreed territorial borders", so one could argue that it fails item b as well.)

What could possibly go in the blank such that a court would permit the prosecution to move forward? I am confident that a court is not going to permit an investigation into a President's state of mind to try and determine a pardon's validity.

The question is more basic than that- Presidential powers are only valid if they are excercised by the President. The claim at this point is straight up fraud and forgery- someone (the NY Post and a few other outlets claim to know exactly who this "senior staffer" is) in the Biden whitehouse is alleged to have issued Executive Orders, using Biden's autopen signature without any discussion of the matter with Biden exploiting his diminished capacity. So the claim has nothing to do with Biden's state of mind in signing the pardons, its that Biden did not in any legally relevant way actually sign the pardons. Given that a) it is indisputablely an autopen signature on the orders in question, and b) Biden's mental decline was such that he either didnt remember or was completely ignorant of his LNG export EO when discussing it weeks later with the Speaker of the House, there is perhaps more merit to the claim than appears on first glance.

Brilliant! This is just beyond the pale of stupidity.

I even think the described actions are probable and philosophically valid (but having many people assist with execution of the same office is a quite complicated and rather dehumanizes the office until the actual holder seems irrelevant.) There are plenty of historical analogues with idiot kings etc. Anyway, sliding all the way down the slope, unless Trump is flying the plane, deportations until the executive branch are illegal, yah enforcing murder's illegality is impossible because only the very, uh, lightning bolt which broke the stone on the 10 commandants, or the person who wrote e.g. §§ 1111 (calling murder unlawful) is eligible to detain or punish; but this person used a tool, a pen and we don't know whether someone else used this pen and was not... And can we just disregard all laws written by lobbyists?

Can someone steel man this?

  • -12

This is exactly the reason why the 25th amendment should have been invoked for Biden, in that any question that the President is not indisputably in command of the powers of his office causes a constitutional crisis. There's a reason why the Vice President is temporarily sworn in when the President is put under anesthesia: even though it is highly unlikely he will die it A) ensures continuity of power and B) prevents mysterious commands issued from the surgery table.

That a cabal of staffers could usurp the power of the presidency should not even be in the realm of contemplatable, let alone allegeable.

The Democrats are taking the consequences of... whatever they did in Biden's tenure. It's up to them to demonstrate that the former president was compos mentis during such and such a date as they claim. Surely, remembering the past three months is not a extraordinary ask, is it? Or perhaps, in lieu of an extraordinary claim, the ex-president can write his own name in court.

Or perhaps drawing a clock would be more illustrative.

How does accessing the current mental faculties of Biden, whether satisfactory or not, prove anything about what they were like three months ago?

If he's old enough that a progress of months is enough to make meaningful differences in his cognition then he was not of sound mind to be president. A motivated actor (and Trump definitely is one) can hammer that wedge to say that all of Biden's acts and orders were not, in fact, issued by him, and thus the pardons are not pardons at all. They are frauds created by staffers without his knowledge.

Such an allegation is essentially unprovable, as you say. But so as long as the DoJ holds this opinion, things will get... interesting.

If he's old enough that a progress of months is enough to make meaningful differences in his cognition then he was not of sound mind to be president.

I feel obliged to note that this isn't necessarily the way it works. If he had a stroke between then and now, for instance, that's a sudden loss of brain function regardless of what that function was before the stroke. Hell, if he had a stroke before the use of the autopen affecting his motor control, that would explain why he couldn't sign his name without necessarily implying anything about his cognition.

Cognitive decline is not always gradual, and loss of motor control without cognitive decline is a thing (see: Stephen Hawking, who certainly wasn't a vegetable).

Such an allegation is essentially unprovable, as you say. But so as long as the DoJ holds this opinion, things will get... interesting.

I think if it comes to a court considering a prosecution for which a defendant has held up a seemingly-valid pardon, they are going to require the DOJ to prove this claim. If that happens, they are gonna lose -- since this is, as we all seem (?) to say, unprovable.

It would be a highly costly victory for the other side, though: having to, in public, defend the veracity of very unpopular and uniquely broad pardons by refusing to cooperate and invoking privilege.

Eh; they were already unpopular. And it would be individual defendants invoking them not big name dems.

Anyway, sliding all the way down the slope, unless Trump is flying the plane, deportations until the executive branch are illegal

Under normal circumstances, I would expect this statute to cover it:

Title 3 USC §301. General authorization to delegate functions; publication of delegations. The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions. Such designation and authorization shall be in writing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part.

However if the President isn't compos mentis, there's a question whether he's able to functionally delegate those powers unless he had something previously set up, either via another statutory scheme which explicitly authorizes the devolution of powers to another executive officer, or via regulation and/or EO. And obviously here there's the factual question of whether the "senior staffer" who allegedly hijacked Biden's autopen" fills the relevant criteria of 301.

And obviously here there's the factual question of whether the "senior staffer" who allegedly hijacked Biden's autopen" fills the relevant criteria of 301.

He clearly doesn't because EOP staffers are not Senate-confirmed. Either Biden ordered the pardon or it is illegal.

Trump doesn’t need to fly the plane, he needs to sign the order to fly the plane. The Constitution lays it out:

The President … shall have Power to grant Reprieves and Pardons for Offences against the United States …

The office of the President isn’t vested with the authority to pardon, but the President himself. Ascertaining whether the President personally authorized or delegated a pardon is meet, just, and right given reasonable doubt.

DOJ's rebuttal is ???.

Were I in the DOJ lawyer's unenviable position, I think my hail Mary throw would be to subpoena Joe Biden himself and get him to declare in court that he did, in fact, authorize the pardon. I'd also try to schedule the testimony for as late in the day as possible.

He's absolutely immune from having to testify about such topics. And rightly so.

That's precisely the reason I called it a hail Mary. At that point, I'd be more worried about Looking Like I Was Doing Something than winning the case.

In what way is he absolutely immune from having to testify on this topic? As IANAL, I'd be interested in any of the resident lawyers offering insight on this topic.

My understanding is that executive privilege is not in fact absolute, and it only comes in to play when revealing the information would impair governmental functions. It's difficult to see how it would apply in this instance, since this factor actually cuts the other way: not revealing the information would hinder governmental functions.

At the very least, Biden's refusal to simply testify that he did in fact issue the order to process the pardons would certainly allow the court to draw a negative inference on the matter. It's a pretty simple question to answer. Of course, doing so would open Biden up to further questioning around his mental capacity. C'est la vie.

IANAL either, but my take here is that if the questioning body could get around executive privilege by asserting that "not testifying hinders (whatever it is I'm doing)" then the privilege would be meaningless. It's certainly always true that refusal to testify hinders something.

Moreover, it's not supposed to be about how any specific instance of testimony impairs the functioning of the government. Rather, it's that, a priori, individuals within the executive need to be free to share their candid thoughts and that the threat of testifying would impair the President's right to receive that advice.

He's immune from having to testify, maybe, but it would be so trivial for him to show up, say "yep, I authorized this" that refusing to do so would raise questions. His refusal to testify on its own would not push towards a verdict that goes Trump's way in the courtroom, but it would certainly go Trump's way in the public opinion.

The pardons, esp Hunter's, were already extremely unpopular. It's hard to see how further public opinion against them would matter if the courts rejected the DOJ's argument.

The pardons themselves are not the only thing this would affect. The narrative is that Americans in 2020 voted for Biden to "restore normality", anything that shatters this idea that the Biden administration was "normal" is good for Trump. Shows that "normality" is not a product of an administration but of its media coverage. That if the media is uninterested in presenting an administration as "chaotic", then it will seem "normal".

Agreed.

I don’t recall offhand any historical precedent where executive branch officials have embarked on such an audacious action to anticipatorily stymie the proper functioning of a federal court—let alone to do so in the midst of a judicial hearing.

Various litigants do this do this literally all the time. Biden's DOJ mooted various COVID litigation by recsinding the order before the Supreme Court could rule on it (Payne v. Biden, Biden v. Feds for Medical Freedom, and Kendall v. Doster).

Maybe it's a bad thing, but "I can't recall offhand at all" when it happened multiple times in the last decade is completely retarded.

Mooting a case by voluntarily ceasing to do the thing litigated against is legally dubious, but it is very different from doing the thing before (or, in this case, during) the hearing and claiming the case is moot because it can't be undone.

The tactic is so common it has a latin phrase -- fait accompli. This doesn't mean it's good, but it is certainly not unprecedented in the slightest.

fait accompli

It's French, for all that I know. But I also don't speak Latin, so maybe it's the same there?

What about mooting a case where you mandated a bunch of people take a vaccine, after your mandate has caused most of them to do so. And now it's moot because you no longer mandate it but those that took it under compulsion can't un-take it?

[ FWIW, I'm extremely pro-vaccine, I was like first in line at our FEMA site to get it from the national guard. This isn't an object-level anti-vax take]

This seems pretty damning.

It seems damning if you accept the paragraph you laid out as true, which it is not. There is fairly on point historical precedent in the case of Schlesinger v. Holtzman. In that case, no less than a Supreme Court justice ordered the executive branch to stop bombing Cambodia. They proceeded to continue to bomb Cambodia through all of the court proceedings until his absurd order was vacated, as this order will eventually be if it continues to be pressed, because like the Holtzman order, it is comically illegal for the judge to attempt to do what he did.

Once again a familiar pattern is emerging in this Trump administration, just as in the first: Many norms are being broken, but almost never by Trump, it is almost always the response to what Trump is doing that is unprecedented. Attempting to exert control over international relations at 8 PM on a Saturday from a DC court is, again, another norm-breaking act by Trump's opposition.

Many norms are being broken, but almost never by Trump

Come off it. You can argue that invoking war powers in peacetime is technically legal, but it is definitely unprecedented.

Impounding spending, while not unprecedented, is a clear breach of norms about separation of powers (and the law, assuming that the Impoundment Control Act is constitutional).

Obfuscating the org chart of a powerful office within the EOP, for example by issuing a press release saying that Elon Musk is head of DOGE and then saying in a court filing that it is actually Amy Gleason, is a breach of norms about basic honesty (and possibly also perjury).

On the other hand, district court judges issuing nationwide injunctions against executive policies that appear to be facially illegal is now, unfortunately, entirely normal.

Come off it. You can argue that invoking war powers in peacetime is technically legal, but it is definitely unprecedented.

Are you familiar with the 2001 AUMF? There are 24 years of precedence, including the use of this authorisation to justify the NSA's warrantless surveillance.

Are you familiar with the 2001 AUMF? There are 24 years of precedence, including the use of this authorisation to justify the NSA's warrantless surveillance.

The AUMF was a declaration of war in all but name, and led to an actual shooting war in Afghanistan. I would prefer that the Congress use the words "Declaration of War" when it exercises its article I power to declare war, because I am a spergy believer in rectification of names, but all three branches of government treated the AUMF as a declaration of war.

The 2001 AUMF is actually still in effect and gives the President total authority over who qualifies as a target. If you want to claim that there's something unprecedented about the use of wartime powers in supposed peace you're just flat out wrong - Trump wasn't involved in politics at all when the 2001 AUMF was put in place, and previous governments have used it to justify the warrantless surveillance of the entire American population. There are over two decades of precedents for this kind of behavior! I actually agree with you that this is bad, but you just look uninformed if you think that this is some brand new abuse of power.

It’s also worth pausing on how difficult it was for J6 defendants to get lawyers yet gang bangers from Venezuela get the ACLU within minutes.

There is something rotten in Denmark

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