It is hard not to be preoccupied, if not obsessed, with political events of the day.
Whatever one thinks of the concerns of either or both sides of the political divide, all seem to agree that these times are of historic significance.
President Trump is the focal point of most of these concerns. He has been accused of many things by his detractors. Many of these are subject to interpretation, i.e., they can be seen differently depending on what lenses people are looking through or what context they are viewing things from.
But events unfolding now in the federal courts concerning the deportation of undocumented immigrants do not seem to be susceptible to such equivocation of interpretation.
The Administration has arrested many alleged violators of federal immigration law. These have included, among many others, a Palestinian student activist who led pro-Palestinian protests at Columbia University and a medical faculty member at Brown University who reportedly had pro-Hezbollah photos and videos on her phone
Mahmoud Khalil, the Palestinian student activist, was slated by the Administration to be deported immediately, before any legal proceedings testing whether he had broken any law. His deportation was stopped by a federal judge who temporarily enjoined it pending appropriate legal proceedings.
Rasha Alawieh, the Brown University faculty member, was similarly slated for immediate deportation. An action in federal court resulted in an order that the government give at least 48 hours notice before deporting her. Nonetheless, the government did deport her, despite having notice of the court’s order.
Meanwhile, a plane with some 250 non-citizens on board was en route to El Salvador when informed of the court’s order to turn around and return to the U.S. It did not do so, but continued to El Salvador and landed. The President of El Salvador, a strong ally of President Trump, is refusing to return these persons.
The present state of affairs is that the federal court ordered the Administration to produce a timetable of events, basically to determine if it knowingly disobeyed the court’s order. Those proceedings are pending.
The Administration justifies its action with reliance on the Alien Enemies Act, a law enacted in late 18th century wartime, giving the Executive Branch authority to detain non-citizens during wartime or invasion.
This act, part of the Alien and Sedition Acts that achieved notoriety during John Adams’ presidency in 1798, has only been cited a handful of times, all during wartime. It has been rejected by the court as applicable in these circumstances.
The profound issue hanging over these proceedings, which demands attention by all of us, not just the legal community, is whether in ordinary times, i.e. not wartime, the President has the authority to act with respect to non-citizens independently of judicial oversight.
A simple reading of the U.S. Constitution suggests the answer is no. Yet despite this, President Trump has called for impeachment of federal judges that rule against him, that he perceives as defying him. Trump publicly called one judge a “Radical Left Lunatic.” He has been rebuked by Chief Justice John Roberts of the Supreme Court, who points out that appellate review is the way in which the correctness of trial judges’ decisions are treated.
These matters are complicated, beyond the possibility of doing justice to all the nuances in a brief essay. But it should frighten all of us that this Administration believes it can act in such important matters without accountability to our judicial system, and that judges exercising lawful Article III authority should be impeached if they rule against the President.
I say all should be concerned. The Constitution established a government based on the separation of powers, legislative, executive, and judicial. Very early in our life as a country it was established that courts are the final arbiters of the rule of law.
The Constitution is not just a document that directs lawyers in how to proceed. It is a document that speaks to all of us, telling all of us what we must do, in our actions as citizens and political actors, to ensure the maintenance of our democratic political system.
We should all take note.
Col Owens is a retired legal aid attorney and law professor, author of Bending the Arc Toward Justice, longtime Democratic Party activist, and member of the Boards of Directors of Kentucky Voices for Health and the Kentucky Board of Elections.
Excellent and timely article! Thank you.
I wonder what the writers of the Constitution would say about the last 80 years of giant power grabs by the Executive Branch and it’s growth to include stealing the power of the purse from Congress by way of executive order, creating a bureaucratic oligarchy that out lasts the executive orders?
I for one am glad our current President is taking back that authority and giving power back to Congress.