Jack Goldsmith on the “Not Simple” Merits Issue Before Judge Boasberg
In trying to understand the many constitutional issues raised by Trump 2.0, I have found Jack Goldsmith to be a particularly informed guide. Jack’s substack, Executive Functions, has become essential reading. Jack has a wide-ranging post today on the case before Judge Boasberg that has been so much in the news lately. Although the public attention on the case has covered a lot of different ground, I thought it worth flagging Jack’s overview of the legal merits of how the Alien Enemies Act does—or doesn’t—apply. Jack’s take: On the merits, the issue is “not so simple.”
The AEA provides (with emphasis added): “Whenever … any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government” who are at least 14 years old, unnaturalized, and within the United States “shall be liable to be apprehended, restrained, secured, and removed as alien enemies.”
The statute further authorizes the president “to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom.” And it makes clear that the president is “authorized” when the statutory criteria are satisfied “to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable,” as well as “the manner and degree of the restraint to which they shall be subject and in what cases.”
This is a very broadly worded authorization to the president in an area of the president’s core constitutional power. The fact that the statute is “obscure” or old is irrelevant to the authority it confers. In the context of the TdA matter it raises at least three legal issues.
First, is TdA perpetrating, attempting, or threatening an invasion or predatory incursion against the territory of the United States within the meaning of the AEA? The preside
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