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PaperclipPerfector  13d ago (text post)   29623 thread views

Culture War Roundup for the week of March 17, 2025

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I'm not convinced by either side that this action is or is not a clear violation of anyone's Constitutional rights. But I'm pretty sure the Trump admin will get away with everything in this particular instance.

The facts on the ground are very much isomorphic to the situation involving "indefinite detention" of "enemy combatants" in Guantanamo Bay pursuant to the Patriot Act and AUMF. Those sorts of detentions have been tested and mostly held up for over twenty years at this point. And that was with a somewhat less favorable Supreme Court. Thus the legality, if not the morality, has stood the test of time.

A few things I haven't seen anyone actually contest:

A) All of the individuals subject to the deportation here were in fact foreign nationals.

B) Likewise, they were all being held on at least probable cause for a crime.

C) The President is 100% allowed to enter deals with foreign states for, among other things, detention of criminals.

If the Alien Enemies Act actually creates/supports the authority that the Trump Administration claims it does (in this case, the authority to 'relocate' foreign nationals pursuant to the President's decree), and these powers fall under the President's Military Authority/Wartime powers, then it is pretty cut-and-dried that these actions aren't subject to Judicial review by mere Federal Judges.

Which is different from saying that the prisoners/detainees aren't entitled to due process and access to Federal Courts. The impact of Boumediene v. Bush is that they can file Habeus Petitions... from their current location. Which actually solves for the due process problem. If the Judge wants to review the validity of their detention he can do so! But if the detention is invalid, as it was for Boumediene himself, then the remedy isn't "take him back to the U.S. and start over." Its, "release him to his country of origin/any country that will take him."

Which, uh, is pretty much what Trump wants.

The wins for Trump seem to be threefold:

  1. Getting 'dangerous' immigrants off of U.S. Soil ASAP. The odds of these guys ever being returned to the U.S. are EXTREMELY slim.

  2. Kicking open a door for expansion of the President's powers to deport illegals over the Judiciary's objections.

  3. "Forcing" Democrats to very vocally stick up for some extremely unsavory people.

And the Judge has already racked up 2 L's.

  1. Trying and failing to force the planes to turn around once they were already in the air, with zero method to enforce it.

  2. Directly undermining the appearance of Court legitimacy by doing so, which undermines the Judiciary going forward.

If I were the Judge, I'd probably have ordered instead that Prisoners so transported should get expedited Habeas reviews, and then ordering the return of any that had their Petitions granted, at which point, if the Admin refused, now I've got some juice to claim unconstitutional overreach.

Indeed, I'm not sure how the Judge wins this. When I game it out in my head, even if he starts throwing out contempt orders to try to gain compliance, Trump can just promise pardons to anyone who gets convicted of contempt, so nobody will feel a need to comply.

Oh, and thanks to Joe Biden, Trump can plausibly offer pre-emptive blanket pardons, as well. WHOOPS.

The Judge CAN win if SCOTUS either strikes down the entire Alien Enemies Act (unlikely) OR severely limits its scope enough to make these actions beyond the pale.

But even then, Congress can Amend the act (which it has before) to extend it to cover the exact powers Trump claims now.

However, if these deportees were improperly vetted and a US citizen was deported, or the media can credibly establish that one or more of the men were not Tren de Aragua members, then these kinds of deportations become more politically volatile going forward.

lol. If there were any truly innocent parties swept up in this particular action, the Admin can say "Whoops, here's a flight home, our treat" and its forgotten in a week.

The only way I see the admin taking a serious popularity/approval hit is if they snagged some U.S. citizens and one or more of said U.S. citizens ends up killed or tortured or otherwise gets very badly harmed in this process.

Its an outside possibility.

Anyway, some guy on Twitter challenged me on this exact point, with a claim that SCOTUS would affirm the Judge's ruling unanimously, so at his suggestion I created a Manifold Markets Prediction market on this point:

https://manifold.markets/WMathieu/supreme-court-rules-unanimously-to

At which point he apparently bought shares of no so, lol.

The facts on the ground are very much isomorphic to the situation involving "indefinite detention" of "enemy combatants" in Guantanamo Bay pursuant to the Patriot Act and AUMF. Those sorts of detentions have been tested and mostly held up for over twenty years at this point. And that was with a somewhat less favorable Supreme Court. Thus the legality, if not the morality, has stood the test of time.

Absolutely -- but the key thing is that the GTMO fellas do get to petition for habeas in a federal court and get a hearing. It's not a full-on trial, but they do get some kind of judgment from a neutral magistrate. That's more than the alleged TDA guys got.

I'm certain I saw this argument in real time.

B) Likewise, they were all being held on at least probable cause for a crime.

The government is explicitly not claiming this - that is why they are using the Alien Enemies Act (which doesn't require probably cause of a crime). The affidavit linked by @Quantumfreakonomics says that the government has probably cause that the detainees are "members" of TdA, but that isn't in itself a crime. The affidavit conspicuously fails to allege that all the detainees provided material support to TdA (which would be a crime because TdA is a designated foreign terrorist organisation), only that some of them did.

C) The President is 100% allowed to enter deals with foreign states for, among other things, detention of criminals.

The powers of the federal government, including the Article II powers of the President, are limited by the Bill of Rights. What this means in practice is unclear, because no previous President has rented space in a foreign prison to house people detained under US law. If the President tried to do this type of deal to house US citizen criminals in a foreign prison without explicit permission from Congress, I would expect him to lose 9-0 at SCOTUS.

lol. If there were any truly innocent parties swept up in this particular action, the Admin can say "Whoops, here's a flight home, our treat" and its forgotten in a week.

I agree with you - but that is the problem. You set the face-eating leopards on an unpopular minority first in order to set a precedent. Trump is claiming the right to disappear (in the semi-technical sense that this term is used to describe administrative detention in authoritarian states) foreigners in the US. He is also claiming the right to do it in a way which would probably prevent a US citizen caught up accidentally getting relief through the courts. We all know what happens if nobody speaks out when they come for the Jews...

Detention without due process based on the use of emergency war powers during peacetime is a break glass moment if you care about the rule of law. The Hamdi case - both the plurality and the Thomas concurrence - take it for granted that the President is detaining Hamdi persuant to the post-9/11 AUMF - not under inherent Article II powers. It was a case about war powers in wartime based on a Congressional pseudo-declaration of war. This is a case about war powers based on an executive proclamation using a non-standard meaning of the term "invasion".

He is also claiming the right to do it in a way which would probably prevent a US citizen caught up accidentally getting relief through the courts.

That depends on what happens with them after they get deported. If they are set free in some foreign country, they can literally buy a plane ticket and come back here. Sure, they will not get a relief that will prevent them from getting detained and removed from the country in the first place, but I don’t see how this is relevant. It is perfectly normal and common to be able to get any relief only after illegal action of government has already been inflicted upon you. It really is not substantially different than getting illegally arrested and jailed: the government needs to take utmost care to avoid doing it, but when you are getting arrested, you cannot get court relief right there and then.

That depends on what happens with them after they get deported.

In the instant case, they are being shipped off to a foreign prison in a country with no effective habeas corpus and whose President (who describes himself as a "dictator") has boasted on social media about the inability of the US courts to protect the prisoners once they arrive in his jail. So no meaningful remedy.

I would not have said the things I said if this was a conventional deportation case. This is a detention without legal process case.

you cannot get court relief right there and then.

You are entitled to an arraignment within 48 hours, at which time the judge will normally set bail.

What this means in practice is unclear, because no previous President has rented space in a foreign prison to house people detained under US law. If the President tried to do this type of deal to house US citizen criminals in a foreign prison without explicit permission from Congress, I would expect him to lose 9-0 at SCOTUS.

There is a bare distinction between simply leasing the land on which you build a prison, and just leasing prison space or paying for detention directly.

The Guantanamo Bay Naval Base, is, of course, built on land leased from the Cuban Government.

The government is explicitly not claiming this - that is why they are using the Alien Enemies Act (which doesn't require probably cause of a crime). The affidavit linked by @Quantumfreakonomics says that the government has probably cause that the detainees are "members" of TdA, but that isn't in itself a crime. The affidavit conspicuously fails to allege that all the detainees provided material support to TdA (which would be a crime because TdA is a designated foreign terrorist organisation), only that some of them did.

If there's no probable cause then holding them AT ALL is the violation of their rights, regardless of where they're held.

So I'm doubtful that there's a complete lack of probable cause, because there's a 90% chance some Judge has already made a ruling that there was.

Detention without due process based on the use of emergency war powers during peacetime is a break glass moment if you care about the rule of law.

We haven't been at 'peacetime' for over twenty years. That's what the AUMF that allows continued detention of prisoners in Gitmo says.

The only distinction is that this particular act, which has existed for centuries and has been used on various occasions, and may allow the President to unilaterally remove foreign nationals effectively as he sees fit sans an act of Congress.

I say this as someone who vociferously despises the Patriot Act (I voted for Obama in '08 and explicitly dropped support for him for Renewing said Act), its still likely to pass Constitutional muster under the line of precedent that currently exists and the current makeup of the Supreme Court.

THE GLASS HAS ALREADY BEEN BROKEN AND EVERYONE ELSE IS JUST LATE TO THE PARTY.

Here I go feeling smug again. I keep saying 'maybe reign in these powers that are clearly prone to abuse and set bad precedent, because someone you don't like might use them." Free Speech is important. Due process is important. Gun rights are important. the Right to Privacy is important. But for the last 4 administrations everybody has looked the other way in most cases when it came time to defend them.

And here we are.

Here I go feeling smug again.

Out of curiosity, what was the content of the comment you were replying to? It's been deleted.

The post as I recall it was that Trump and Co. taking steps to punish universities for allowing anti-israel/pro-palestine protestors to occupy buildings and harass students, and the deportation of the one guy who was here on a green card.

It had a lot of other details in there but the gist was trying to make it seem like some massive assault on first amendment rights was occurring.

Likewise, they were all being held on at least probable cause for a crime.

Do we know this? I looked into the court documents and found this in an affidavit:

”While it is true that many of the TdA members removed under the AEA do not have criminal records in the United States, that is because they have only been in the United States for a short period of time. The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile.”

If they are held on probable cause for a first offense, does that count as not having a criminal record?

If they are held on probable cause for a first offense, does that count as not having a criminal record?

Correct.

Although the term: "criminal records in the United States" introduces some ambiguity.

Also, I haven't dug deep but I'd assume there's some RICO-type laws invoked as well, to wrap up gang members who aren't directly caught in the act.

The FedGov is, if nothing else EXTREMELY GOOD at rolling up large scale criminal conspiracies all at once. So I'm guessing they've got a pretty strong case to the extent they can prove the gang ties exist.

Why not just release a list of all of the men and the evidence you have of their membership in TdA?

Because you'd rather not keep such men around in your country when you could move them somewhere else, since in general you wanted none of them in the country in the first place.

I'm afraid that in this particular instance, non-TdA members may have been caught up in the raids or other sources of arrest of these men (for example, by overworked immigration officials and police officers misidentifying tattoos or arresting people who were in the wrong place at the wrong time) and this will undermine the ability of the administration to deport large groups of people under the Alien Enemies Act or other statutes going forward.

If there are no actual U.S. citizens among them, in what possible way could this actually turn people against further deportations?

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