In examination of the discussion concerning the Trump administration’s efforts to deport known criminals who are in the United States illegally, focusing on the constitutional tension between presidential powers (Article II) and the judiciary’s role in overseeing or restraining those powers, there are several important issues of concern:

Judicial Power v. Presidential Power, Copyright, RCR

The Non-Justiciable Argument: The administration claims that certain decisions regarding deportations are non-justiciable, meaning courts should have no role. However, even if this argument holds merit, it does not justify ignoring court orders.

Judicial Overreach: There is criticism of judges issuing national injunctions, viewed as exceeding their authority. Even Supreme Court justices, including Justice Kagan, have questioned the legitimacy and prudence of such broad judicial actions.

Target Selection and Strategy: The Trump administration should choose its legal battles wisely. Past missteps, such as indiscriminate enforcement or lack of focus, have caused unnecessary legal challenges.

The Alien Enemies Act of 1798: The discussion addresses the legal justification for deportation under this act, which requires proof of an invasion or clear ties to a foreign government. The administration argues that Tren de Aragua, a Venezuelan criminal organization, acts as a proxy for Maduro’s regime, effectively controlling territories and destabilizing regions, which they claim justifies deportation.

State Secrets Privilege: There’s a debate over whether the Trump administration should invoke the state secrets doctrine, which allows the government to withhold information in the interest of national security. Concerns are raised that invoking state secrets too broadly may undermine the integrity of the privilege in future cases.

Public Perception and Policy: The broader context is that many Americans support deporting dangerous individuals, questioning why courts would obstruct such actions. However, the issue is to also use caution in the methods used to achieve deportations, so as not to jeopardize key legal doctrines or exceed constitutional boundaries.

Outlook: This issue concerns the question as to whether the Trump administration will prevail on the issue of deportations, asserting that immigration enforcement and deportation of non-citizens are within the executive branch’s constitutional powers (Article II). Caution is raised here against reckless legal maneuvers that could weaken future presidential authority or critical legal doctrines like state secrets.

A Detailed Examination of The Primary Issues

The Non-Justiciable Argument

The administration’s claim that deportation decisions in this context are non-justiciable reflects a traditional view of plenary executive authority over immigration and foreign affairs. Historically, the Supreme Court has recognized broad executive discretion in immigration matters (see Fong Yue Ting v. United States, 149 U.S. 698 [1893]).

However, non-justiciability doesn’t grant the executive the right to ignore court orders outright. Under Marbury v. Madison (1803), the judiciary maintains the role of interpreting the law, and ignoring its orders risks a constitutional crisis and undermines the rule of law.

Judicial Overreach and Nationwide Injunctions

The critique of nationwide (or “universal”) injunctions is a valid and growing concern, even within the judiciary itself. Justice Thomas, for example, has voiced opposition to them (Trump v. Hawaii, 585 U.S. [2018], concurring opinion), arguing they exceed Article III’s case-or-controversy limitations.

Justice Kagan’s skepticism toward universal injunctions (as mentioned) suggests bipartisan unease. The concern is that a single district judge can halt executive actions nationally, creating a separation of powers issue.

The Alien Enemies Act (1798)

The administration’s reliance on the Alien Enemies Act (part of the Alien and Sedition Acts) is interesting. The law is still in force (50 U.S.C. § 21–24) and gives the president broad authority to apprehend and remove alien enemies in times of war or threats from foreign powers.

A legal challenge lies in proving an active tie between Tren de Aragua and the Maduro regime. Without clear evidence of state sponsorship or formal alignment, using this act becomes legally tenuous.

If the government asserts that Tren de Aragua acts as a quasi-governmental force, there needs to be robust intelligence supporting this—potentially justifying the use of state secrets.

The State Secrets Doctrine

The state secrets privilege, established by United States v. Reynolds, 345 U.S. 1 (1953), permits the executive branch to withhold information if its disclosure would harm national security.

Invoking state secrets in this case could weaken the doctrine if the courts perceive it as abusive or pretextual. Some courts have expressed growing scrutiny of state secrets claims, especially in cases where they appear to shield executive overreach.

The requirement for a cabinet-level declaration is standard, but the risk-reward calculation of using the privilege must be weighed carefully.

Executive Power Under Article II

Deportation and immigration enforcement are firmly within Article II executive powers, particularly when tied to national security and foreign affairs (see Knauff v. Shaughnessy, 338 U.S. 537 [1950]).

However, judicial review acts as a constitutional safeguard against arbitrary detention or removal. Courts have historically intervened where constitutional rights (due process, equal protection) are implicated, even for non-citizens (Zadvydas v. Davis, 533 U.S. 678 [2001]).

Political Considerations and Public Perception

Public sentiment strongly supports removing dangerous criminals, but legal processes must align with constitutional norms to preserve legitimacy and prevent abuse.

The administration risks eroding public trust and judicial deference if it overreaches or defies court orders.

Strategic Litigation Advice

This issue reflects a pragmatic approach, suggesting the administration should pick its battles wisely: Avoid unnecessary legal risks, such as overreliance on controversial doctrines. Preserve core executive powers by not provoking adverse judicial rulings that could narrow presidential authority in future administrations.

This discussion highlights the complex interplay between executive enforcement of immigration laws, judicial oversight, and constitutional doctrines like state secrets. The Trump administration’s efforts to deport known criminals align with traditional presidential powers, but method and justification are crucial.

There is legitimate concern about judicial overreach, especially with nationwide injunctions. State secrets should be invoked sparingly to avoid diluting the doctrine’s legal weight. Executive power over immigration enforcement is robust but subject to constitutional limits. Strategic restraint and respect for judicial processes can help preserve long-term executive authority.

Citations and Sources:

Presidential Power in Immigration and Deportation (Article II Authority)

Fong Yue Ting v. United States, 149 U.S. 698 (1893): Holding: Affirmed that the power to deport aliens is inherent to the sovereignty of the United States and is vested in the political branches (Executive and Congress), not the judiciary.

Relevance: This is a foundational case for executive power in immigration enforcement.

Citation: “The right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, is an inherent and inalienable right of every sovereign and independent nation.”

Knauff v. Shaughnessy, 338 U.S. 537 (1950)

Holding: The exclusion of aliens is a fundamental act of sovereignty, exercised through the executive, and courts have limited power to review such decisions, especially during times of national security concern.

Relevance: Supports the view that immigration decisions are primarily executive functions, though not entirely immune from judicial review.

Citation: “The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.”

Shaughnessy v. Mezei, 345 U.S. 206 (1953)

Holding: Reaffirmed executive discretion in excluding aliens, even without full due process protections, particularly where national security is invoked.

Relevance: Demonstrates the broad scope of executive power in immigration, especially in national security cases.

Judicial Oversight and Limits on Executive Power

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

Holding: Established the principle of judicial review, affirming that it is the role of the courts to say what the law is.

Relevance: Even if immigration enforcement is an executive function, courts have the constitutional authority to review executive actions for legality, especially when constitutional rights are implicated.

Zadvydas v. Davis, 533 U.S. 678 (2001)

Holding: Limited the government’s power to indefinitely detain non-citizens ordered deported, ruling that such detention beyond a “reasonable period” violates due process rights.

Relevance: Courts can and do review immigration-related detentions to ensure they comply with constitutional protections.

Nationwide Injunctions and Judicial Overreach

Trump v. Hawaii, 585 U.S. ___ (2018)

Majority Opinion (Roberts): Upheld the president’s travel ban based on national security grounds under 8 U.S.C. § 1182(f), affirming broad executive authority.

Justice Thomas’s Concurring Opinion: Criticized nationwide injunctions, arguing they are inconsistent with Article III of the Constitution.

Citation:  (Thomas): “These injunctions are legally and historically dubious. If their popularity continues, this Court must address their legality.”

Relevance: Highlights the controversy surrounding universal injunctions, which interfere with the execution of presidential policies.

Dep’t of Homeland Sec. v. New York, 589 U.S. ___ (2020)

Relevance: The Supreme Court addressed nationwide injunctions in this case, adding to the discussion on their appropriateness and potential overreach.

State Secrets Privilege

United States v. Reynolds, 345 U.S. 1 (1953)

Holding: Formally recognized the state secrets privilege, allowing the government to withhold evidence in legal proceedings when disclosure would threaten national security.

Relevance: Provides the framework for invoking the privilege but also requires that the executive branch establish the need for secrecy through formal declarations, typically by cabinet-level officials.

Citation: “There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.”

General Dynamics Corp. v. United States, 563 U.S. 478 (2011)

Relevance: Reaffirmed the state secrets doctrine as essential to national security but also emphasized the limits on litigation when such secrets are at stake.

Scholarly Source: Louis Fisher, “The State Secrets Privilege: Relying on Reynolds”, 122 Yale L.J. 482 (2012)  Argues that the state secrets privilege has been overused and warns about undermining its legitimacy through abusive invocation.

The Alien Enemies Act of 1798

Statutory Citation: 50 U.S.C. §§ 21–24 (Alien Enemies Act)

Key Provisions: Grants the president authority to detain, relocate, or remove non-citizen nationals of a hostile foreign nation during times of war or threat.

Historical Usage: World War II: Used against nationals of enemy countries (Germany, Japan, Italy).

Relevance: The Trump administration’s potential reliance on this law hinges on proving a connection between hostile foreign governments and the individuals being targeted for removal.

Scholarly Source: Stephen I. Vladeck, “The Alien Enemy Act and the Trump Administration”, Lawfare, Jan. 2017

Discusses the constitutional and practical challenges of applying the Alien Enemies Act in modern contexts.

Executive Power in Foreign Affairs

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)

Holding: The president is the “sole organ” of the nation in foreign affairs, with plenary authority in that domain.

Relevance: Supports the president’s authority to conduct foreign negotiations and enforce immigration laws tied to foreign threats, as mentioned in the transcript regarding negotiations with El Salvador and Venezuela.

Citation: “[T]he President alone has the power to speak or listen as a representative of the nation.”

Policy and Public Perception: Pew Research Center Reports:

“Public Continues to Back Deferred Action for Immigrants Brought to U.S. Illegally as Children” (2020) “Americans’ Views on Border Security and Immigration Enforcement” (2019)

While Americans generally support strong border enforcement and removal of criminals, they diverge on policies regarding due process and humanitarian considerations.

Deportation authority is largely an executive function, well-supported by both statute and case law. Judicial review acts as a constitutional check, ensuring executive actions comply with due process and statutory limits. Nationwide injunctions are under increasing judicial scrutiny, and there is momentum within the Supreme Court to clarify or restrict their usage. State secrets is a powerful but fragile doctrine, best reserved for clear national security cases, lest it be weakened by judicial skepticism.

Categories: Robert Clifton Robinson

Tags: Activist Judges, Deportation Tren de Aragua, Judicial Power v. Presidential Power