Mar.18

electoral-vote.com

Dem 47

   

GOP 53

Trump Wages War against Immigrants... and the Rule of Law

It was entirely foreseeable that Donald Trump would find a way to "make some headlines" with immigration enforcement actions. After all, if your administration is not having much success in terms of absolute numbers—and Trump's administration definitely is not—then "winning" a couple of news cycles with one or two high-profile actions serves as a fairly useful substitute, politically. It was also entirely foreseeable that Trump and his minions would edge closer and closer to outright defiance of the courts. Both of these foreseeable trends have come to fruition.

There were not one, not two, but three high-profile (and outrageous) stories on this front in the last week or so. Here they are, in chronological order:

1. Mahmoud Khalil: Let's start this one (and, the item as a whole) with some basics. Everyone in the U.S. has basic constitutional rights, no matter your immigration status or nationality. The Bill of Rights applies to "people" and "persons," not just U.S. citizens.
   
   At the border, agents can detain and deport with a bare minimum of due process, but once inside the country, the Fourth Amendment protections against unreasonable searches and seizures apply, as do Fifth Amendment due process rights. ICE agents can't just go around snatching people up, particularly if someone is exercising that most fundamental of rights, the right to free speech. Political speech is especially important in the U.S. and is a form of speech that comes with the greatest protections.
   
   In addition, ICE agents are not law enforcement—they work for an administrative agency. So, they can't make arrests for general crimes. They can detain someone but only if they have probable cause for a violation of immigration law. They also cannot enter or search anyone's home without a valid search warrant signed by a judge. No one is obligated to talk to an ICE agent. Anyone can simply walk away or ignore them, or refuse to open the door if they're at your home. Moreover, they can be excluded from any place that isn't public—in other words, universities like Columbia can keep ICE agents out of private spaces if they don't have a warrant.
   
   All of the above makes what ICE agents did to Mahmoud Khalil and his pregnant wife all the more outrageous and blatantly illegal. Khalil is a lawful permanent resident of the U.S. (a.k.a., a green card holder). He is not in violation of any immigration laws. Nevertheless, it appears—and reports remain somewhat fuzzy, because of the veil of secrecy put up by the Trump administration—that agents arrived at his home last Saturday and were given access to private spaces without a warrant. They were able to enter the apartment building where Khalil and his wife lived, and which is owned by Columbia, and followed them into their apartment. Even though the ICE agents had no arrest warrant, no search warrant, and no probable cause of any kind, they arrested Khalil and took him away as his wife watched. Did we mention she is 8 months pregnant?
   
   Next, ICE apparently secreted him away to a private prison in Jena, LA, while telling his wife that he was being detained in New Jersey. Thankfully, Khalil had already connected with legal counsel, who immediately went to court for an order ensuring that he remain in the country so a hearing can be held. The order was issued on Wednesday, by U.S. District Judge Jesse Furman, who said that Khalil must be held in the U.S. "unless and until this court orders otherwise." Maybe that buys Khalil time to resolve his case, maybe it doesn't (keep reading).
   
   ICE agents are not hatchet men for Donald Trump, who posted on his failing social media platform that this is the "first of many to come." Trump has enlisted Secretary of State Marco Rubio, who claims that Khalil is associated with Hamas, and that the state department is "revoking" his green card based on "activities" which so far have not been identified. It is true that Khalil was involved in pro-Palestinian protests on campus, but that is not illegal (remember: First Amendment) and it's certainly not proof of being associated with a terrorist organization. Further, and to be clear, no agency can unilaterally revoke a green card—it takes a court order. Betar US, a Zionist activist group that is the only Jewish group listed as a hate group by the ADL, claimed credit for giving Khalil's name to the Trump administration.
   
   
2. The Venezuelans: Trump was not kidding when he said that Khalil was only the beginning. Over the weekend, the White House did something that it surely has been itching to do, and invoked the Alien Enemies Act. This is a law passed in 1798 (i.e., over 200 years ago) in anticipation of a formal war with France (which did not happen, though there was the undeclared Quasi-War of 1798-99). Here is the key passage of the law:

   [W]henever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.

   Using authority claimed under this act, the administration declared 261 Venezuelans in the U.S. to be members of the gang Tren de Aragua, and began efforts to deport them to El Salvador via a fleet of airplanes. The point of doing it this way is that the Alien Enemies Act waives the Fourth Amendment protections that, as we note above, even non-citizens are entitled to.
   
   There are three things here, in particular, that twist American law beyond its breaking point. First, the government has yet to provide any evidence that the accused are gang members, have committed crimes, etc. Second, while Trump likes to refer to immigrants/gangs as "invaders," his use of that term is unrelated to the meaning of "invasion" as the authors of the 1798 law meant it. They, of course, meant an invading army under the command of a hostile sovereign power. Third, and most clear-cut, even if the accused ARE gang members and even if their presence IS an invasion, there has been no declaration of war. The other three times the Alien Enemies Act has been invoked were during the War of 1812, World War I and World War II—all of them, of course, formally declared wars.
   
   Recognizing that the administration was moving as fast as is possible, so as to get the accused out of the country as fast as is possible, and to make protecting their rights as difficult as is possible, the ACLU quickly filed suit on Saturday, and the matter ended up in the Court of Chief Judge of the United States District Court for the District of Columbia James Boasberg (who was appointed to judicial posts by both George W. Bush and Barack Obama). He told the administration to halt any deportations, and to cause any planes that had left the country to return, until the matter could be resolved. Initially, that instruction was verbal, but Boasberg backed it up with a written order as soon as he could get one typed up.
   
   The Trump administration—specifically, Stephen Miller and HHS Secretary Kristi Noem—decided to just ignore Boasberg's order, and to continue the flights. When the Judge learned of this, on Monday, he was apoplectic. In response, Department of Justice lawyers who appeared before the court made four arguments as to why everything here was within the bounds of the law: (1) The administration knows things about the deportees that justify the deportations, and does not have to share that information with anyone, even the judge, because of national security; (2) the judge's initial order was oral, and oral orders don't count; (3) by the time the judge issued a written order, it was too late, and the planes were gone (this is a lie, and also a red herring; even if the planes had departed and landed, planes work in both directions); and (4) the judge's authority ends at the U.S. border, and so his orders related to people who are now in a foreign country are null and void.
   
   In short, Trump and his minions are now officially ignoring court rulings. And they are taking pride in their defiance. Trump border czar Tom Homan went on Fox for an interview and declared: "I'm proud to be a part of this administration. We're not stopping. I don't care what the judges think. I don't care." Elon Musk called for Boasberg to be impeached and removed from office, and Rep. Brandon Gill (R-TX) got right on that, filing the requested articles of impeachment with Speaker Mike Johnson (R-LA). And Salvadoran president Nayib Bukele, a strongman who has outed himself as a Trump lapdog, posted this to eX-Twitter:
   
   
   
   Marco Rubio, who continues to debase himself, retweeted the message from Bukele.
   
   
3. Rasha Alawieh: As we note, we present these in chronological order, but the second and third entries overlap a lot, as they both unfolded over the weekend. Anyhow, Alawieh is a citizen of Lebanon who was in the United States on an H-1B visa, and who is employed as a professor by Brown University's medical school, specializing in kidney transplants. She went home to visit family, and on her re-entry into the U.S., she was detained by U.S. Customs and Border Protection.
   
   Alawieh's cousin, Yara Chehab, who is a U.S. citizen, found out what was happening and filed an emergency lawsuit in Massachusetts federal court. District Judge Leo T. Sorokin issued an immediate order telling the Trump administration to hold Alawieh until the matter could be resolved. As with the Venezuelans, the White House simply ignored the order, and put Alawieh on a plane to Paris, to then be transferred to a plane back to Lebanon. Yesterday, the administration claimed that it commenced the deportation before learning of the Judge's order. As with the Venuzuelans, this is a lie and, again, even if it was true, airplanes fly in both directions. Like Boasberg, Sorokin is furious, and is demanding answers. Undoubtedly, articles of impeachment will be filed against him very soon.
   
   Yesterday, the administration gave some details as to why they targeted Alawieh, saying that she attended the funeral of Hezbollah leader Hassan Nasrallah and that she had "sympathetic photos and videos" of prominent Hezbollah figures in the deleted items folder on her cell phone. Alawieh, for her part, says that she went to the funeral (with 20,000 other people, mind you) and that she had the photos because of her adherence to the individuals' religious teachings, and not because of their politics. Whether or not that is true, the administration has articulated no legal theory as to why it's against the law to go to a funeral, even the funeral of one of the bad guys. And if it does articulate such a legal theory, it's up to a court, not Stephen Miller and Kristi Noem, to assess its merits and its applicability to the case.

So the rubber, as it were, has now met the road. The Trump administration had grown increasingly more willing to push back against judges, to drag its feet in abiding by court orders, to advance spurious legal theories as to why the judges' orders were not valid, etc. Now, the White House has crossed the Rubicon and started outright ignoring orders. And so, it's now time for the next chapter to be written. Can the judges do something? Will they do something? Will Congress step in, realizing that if there is no rule of law, then there's no Congress?

The next week, then, could be very instructive. That said, even if the judges prove impotent, and even if Congress continues to perform the head-in-the-sand routine, that's not the end of the story. Again, the White House is providing flimsy explanations for its current behavior, and those explanations give the Republican members of the Congress something to grab onto, even if they know it's bulls**t. But if Trump has shown us anything, it's that if you give him an inch, he'll take a mile. So, "wins" here will undoubtedly embolden him, more and more. And even if we're currently in a situation where Congressional Republicans can pretend that all is still well, we will soon get to a place where that will be much, much, much harder. (Z & L)