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“It’s time we put a felon in the White House.” only if the US returns to the 18th Century [1]

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Date: 2024-10-13  

Political immunity and its qualifications make goalposts move every which way.

The plan is illegal. But courts might refuse to strike it down based on the "political questions" doctrine.

Despite the strong legal arguments against it, there is a chance Trump could succeed in using the Alien Enemies Act as a tool for detention and deportation. As Katherine Yon Ebright notes, courts might rule that the definitions of "invasion" and "predatory incursion" are "political questions" that courts aren't allowed to address. Several previous court decisions have held that the definition of "invasion" in the Constitution is a political question (thereby preventing state governments from invoking broad definitions of invasion under the Invasion Clause of Article IV in order to be able to "engage in war" in war without federal authorization), though many have simultaneously held that an illegal migration does not qualify as "invasion" because an invasion requires a large-scale armed attack (see pp. 20-22 of my amicus brief).

Ebright argues (correctly, I think) that even if the definition of "invasion" is usually a political question, the use of the Alien Enemies Act as a tool for mass detention and deportation of migrants from countries with which the US is not at war should fall within the exception for "an obvious mistake" or "manifestly unauthorized exercise of power" (Baker v. Carr (1962)). I would add that the entire political question doctrine is an incoherent mess, and courts should not extend it further.

Nonetheless, there is a danger they could apply it here, and thereby let Trump get away with a grave abuse of power that could potentially harm many thousands of people. Mass deportations of the kind envisioned by Trump would create disruption, increase prices and cause shortages. They also destroys more American jobs than they creates, because many U.S. citizens work in industries that depend on goods produced by undocumented workers. In addition, large-scale detention and deportation routinely sweeps in large numbers of US citizens, detained by mistake because of poor-to-nonexistent due process protections.

reason.com/...

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