4.15.25 - The Orange Man is a Fascist
Plenty being said about this. Not much for me to say. Except maybe the glimmers of a legal insight.
Let's consider where the case law MIGHT situatute us.
The President, under the Alien Enemies Act, can designate aliens as members of foreign terrorist organizatoin, or otherwise invaders, and remove them, even outside of a declared war. As foreign adversaries, they are not subject to the same kind of Due Process protections as an ordinary non-citizen resident. The President's discretion in assigning these designations is broad, and because he is the commander in chief, and because Congress has delegated this element of their Article I warmaking authority to him, they are legally rock solid.
For non-aliens, the President can use the Authorization of the Use of Military Force Act to designate U.S. citizens as enemy combatants. on U.S. soil (this is an unanswered question under Rumsfeld v. Padilla, but lets entertain the possbility that this is legal). Under this authority, the President can place these individuals in military custody.
Now, we have two pathways where the President has broad powers to diminish the process rights of citizens and non-citizens alike, and under which he, as commander of the armed forces, can direct the military to remove and detain these individuals.
For non-citizens, it is apparently clearly legal to deport them out of the country and contract with foreign governments to house them in foreign prisons. For citizens designated enemy combatants, what is the authority? The President can certainly keep them in military brigs. Can he keep them abroad? Yes, but they have right of habeas corpus and to petition their detention while in U.S. custody. But maybe the military can just give enemy combatants, even those that are U.S. citizens, to foreign governments, since they are their custodians. What about U.S. citizens who aren't enemy combatants, but are just criminals? Well, the Bureau of Prisons does have extreme latitude in making prison designations. Maybe that includes contracting with private prisons or foreign governments abroad to house them outside of U.S. soil.
Let's entertain that incarcerating aliens, enemy combatants, and simple criminals abroad is all legal. Well, maybe they still have recourse, right? Well Habeas Petitions now become complicated, because the proper respondents are supposed to be the immediate custodian when they're challenging the fact of their confinement. The respondent can sometimes be the one who exercises legal control, but this has been narrowed by the Court after Rumsfeld v. Padilla, and for what its worth, the one with legal control is now a foreign government. So actions taken from the prisoners themselves become complicated. Okay, but Courts can still issue orders to the government, right? Yes, the District Court of Maryland just did this, and the Supreme Court affirmed it 9-0.
But it seems that, if we accept the government's argument from their filing in Maryland today, a Court cannot compel them on how to exercise their foreign affairs power, or direct them on how to conduct diplomacy. With prisoners in the custody of foreign nations, any acts to facilitate or effectuate their release or address their conditions of confinement becomes an act of diplomacy.
Alright, but what if a Court ultimately disagrees? What if, they say the foreign affairs power cannot be interpreted in this way or used to undercut Due Proces rights? Well, they can issue a sanction, or hold officers of the Government in contempt of Court. Well, Trump can simply pardon them. Trump did this with Sheriff Arpaio. Yes, the President can pardon someone for contempt of court. So really, there's nothing a Court can do but issue the Order, which can just be ignored without penalty.
Okay, but what about when the President leaves office? What if we decide that they broke the law in how they deported someone, or how they exercised their military authority in housing enemy combatants, or that they used their pardon power to corruptly obstruct justice? Well, under Trump v. United States, all of those powers are within the preclusive and exclusive authority of the President, and as a result all of of these actions enjoy absolute liability from criminal inquiry. Furthermore, none of these actions can be used as evidence for a crime in an unofficial act. So once the President leaves office, there is no way to penalize him for these actions even if we think they were done "illegally."
Yes, it seems like it is possible for a President to use his delegated powers to label people enemy aliens, enemy combatants, or whatever, direct soldiers to put them on a plane, send them to death camps outside of the country in foreign custody, ignore Court orders to remedy these acts when they were done illegally, pardon any of his subordinates if the Court holds them in contempot for ignoring the order, and completely avoid criminal liability.
How does that make you feel?
knxnts