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PaperclipPerfector  17d ago (text post)   29712 thread views

Culture War Roundup for the week of March 17, 2025

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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.

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