Tag: constitution

Legal Challenges to Alien Enemies Act of 1798 Not Subject to Judicial Review Supreme Court Rules

On April 7, the Supreme Court sided with Trump regarding the constitutionality of using the Alien Enemies Act to deport Venezuelans associated with a criminal gang designated a foreign terrorist organization by, guess who, Trump.  Incredibly, the Court basically held that government acts under the Alien Enemies Act are largely not subject to judicial review.  Let me say that again, the Court held that government acts under the Alien Enemies Act are largely not subject to judicial review.  Below is a summary of the key points and below that the Court’s ruling:

  • The plaintiffs according to the Court used the wrong argument.  The plaintiffs challenged the government’s “interpretation” of the Alien Enemies Act.  Citing a 1948 case, the Court stated that Alien Enemies Act is largely not subject to judicial review, or as they wrote, “preclude[s] judicial review.  
  • Instead, the plaintiffs should have used the Writ of Habeas Corpus (see earlier blog post on Habeas Corpus), which they did initially, but changed their argument, according to the Court.
  • The Court also removed the US District Court, Washington DC, from jurisdiction to hear the case.  Stating that challenges must be heard in the district of confinement.  Note not arrest, but confinement. In this case Texas, the epitome of fairness and equity and liberal jurisprudence.
  • The Court did say that detainees detention must have some ‘judicial review’ and must be given notice of deportation and that they be afforded an “opportunity to be heard.” 

Per Curiam

SUPREME COURT OF THE UNITED STATES

No. 24A931 _________________

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL. v. J. G. G., ET AL.

ON APPLICATION TO VACATE THE ORDERS ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

[April 7, 2025]

PER CURIAM. 

This matter concerns the detention and removal of Venezuelan nationals believed to be members of Tren de Aragua (TdA), an entity that the State Department has designated as a foreign terrorist organization. See 90 Fed. Reg. 10030 (2025). The President issued Proclamation No. 10903, invoking the Alien Enemies Act (AEA), Rev. Stat. §4067, 50 U. S. C. §21, to detain and remove Venezuelan nationals “who are members of TdA.” Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua, 90 Fed. Reg. 13034. Five detainees and a putative class sought injunctive and declaratory relief against the implementation of, and their removal under, the Proclamation. Initially, the detainees sought relief in habeas among other causes of action, but they dismissed their habeas claims. On March 15, 2025, the District Court for the District of Columbia issued two temporary restraining orders (TROs) preventing any removal of the named plaintiffs and preventing removal under the AEA of a pro- visionally certified class consisting of “[a]ll noncitizens in U.S. custody who are subject to” the Proclamation. Minute Order on Motion To Certify Class in No. 25−cv−00766. On March 28, the District Court extended the TROs for up to an additional 14 days. See Fed. Rule Civ. Proc. 65(b)(2). The D. C. Circuit denied the Government’s emergency motion to stay the orders. The Government then applied to this Court, seeking vacatur of the orders. We construe these TROs as appealable injunctions. See Carson v. American Brands, Inc., 450 U. S. 79, 84 (1981). The D. C. Circuit denied the Government’s emergency motion to stay the orders. The Government then applied to this Court, seeking vacatur of the orders. We construe these TROs as appealable injunctions. See Carson v. American Brands, Inc., 450 U. S. 79, 84 (1981). 

We grant the application and vacate the TROs. The detainees seek equitable relief against the implementation of the Proclamation and against their removal under the AEA. They challenge the Government’s interpretation of the Act and assert that they do not fall within the category of re- movable alien enemies. But we do not reach those arguments. Challenges to removal under the AEA, a statute which largely “‘preclude[s] judicial review,’” Ludecke v. Watkins, 335 U. S. 160, 163−164, (1948), must be brought in habeas. Cf. Heikkila v. Barber, 345 U. S. 229, 234−235 (1953) (holding that habeas was the only cause of action available to challenge deportation under immigration statutes that “preclud[ed] judicial intervention” beyond what was necessary to vindicate due process rights). Regardless of whether the detainees formally request release from confinement, because their claims for relief “ ‘necessarily imply the invalidity’ ” of their confinement and removal under the AEA, their claims fall within the “core” of the writ of habeas corpus and thus must be brought in habeas. Cf. Nance v. Ward, 597 U. S. 159, 167 (2022) (quoting Heck v. Humph- rey, 512 U. S. 477, 487 (1994)). And “immediate physical release [is not] the only remedy under the federal writ of habeas corpus.” Peyton v. Rowe, 391 U. S. 54, 67 (1968); see, e.g., Nance, 597 U. S., at 167 (explaining that a capital pris- oner may seek “to overturn his death sentence” in habeas by “analog[y]” to seeking release); In re Bonner, 151 U. S. 242, 254, 259 (1894). For “core habeas petitions,” “jurisdiction lies in only one district: the district of confinement.” Rumsfeld v. Padilla, 542 U. S. 426, 443 (2004). The detain- ees are confined in Texas, so venue is improper in the District of Columbia. As a result, the Government is likely to succeed on the merits of this action.
The detainees also sought equitable relief against summary removal. Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to “‘judicial review’ ” as to “questions of interpretation and constitutionality” of the Act as well as whether he or she “is in fact an alien enemy fourteen years of age or older.” Ludecke, 335 U. S., at 163−164, 172, n. 17. (Under the Proclamation, the term “alien enemy” is defined to include “all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States.” 90 Fed. Reg. 13034.) The detainees’ rights against summary removal, however, are not currently in dispute. The Government expressly agrees that “TdA members subject to removal under the Alien Enemies Act get judicial review.” Reply in Support of Application To Vacate 1. “It is well established that the Fifth Amendment entitles aliens to due process of law” in the context of removal proceedings. Reno v. Flores, 507 U. S. 292, 306 (1993). So, the detainees are entitled to notice and opportunity to be heard “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). More specifically, in this context, AEA detainees must receive notice af- ter the date of this order that they are subject to removal under the Act. The notice must be afforded within a rea- sonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs. 

For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement. The dissents would have the Court delay resolving that issue, requiring—given our decision today—that the process begin anew down the road. We see no benefit in such wasteful delay. 

The application to vacate the orders of the United States District Court for the District of Columbia presented to THE CHIEF JUSTICE and by him referred to the Court is granted. The March 15, 2025 minute orders granting a temporary restraining order and March 28, 2025 extension of the United States District Court for the District of Columbia, case No. 1:25-cv-766, are vacated. 

It is so ordered. 

“Hands Off” Louisa, Virginia Rally

Hands Off Signs

As part of nation-wide Hands Off protests and rallies, residents of Louisa, Virginia, assembled at the Court House steps this Saturday to add their voices to a growing chorus across America, and the world, excoriating Trump’s attacks on democracy.

Organized by the Louisa County Democratic Party, the rally was one of the largest gatherings, as I understand it, in memory. The diverse and enthusiastic participants focused on wide ranging issues: Constitutional rights, Education, Healthcare, Human and Civil Rights, Immigration, Justice, LGBTQ rights, Social Security, and Veteran Services. This wasn’t a one issue rally.

Boos and Jeers for Trump

Speeches, songs, and chants filled the Court Houses front steps from noon to two. Homemade signs expressed patriotism and anger. A number of speakers derided Trump’s attacks on democracy and also on our congressional district’s representative John McGuire (R) lack of honesty and integrity in the face of constituent questions.

A song or two
A Louisa Veteran

Speakers repeatedly called to protect social security, medicare, and medicaid –which assists Americas most vulnerable populations — from being cut to fund trillions in taxes cuts for the millionaire class. Boos and catcalls followed mentions of Trump’s tariffs. One speaker addressed the serious threats to veterans and their health services because of massive layoffs and program cuts at the Department of Veterans Affairs. Trump, Musk, and McGuire the villains of the day.

A number of participants volunteered to speak to the assembled crowd. One told of his still living mom’s experiences in Nazi occupied France — she was 11 when they invaded — and her fear that America is heading towards fascism. I can relate to that as my mom and her family lived under Nazis occupation as well. She sees parallels today.

Tom’s Report on the State of America’s Democratic Health

As of April 4, 2025

Weekly Summary of Democratic Backsliding and Erosion

Trump’s pace has slowed but the damage to liberal democracy continues to accumulate, like DDT did in Bald Eagles once.  I mention the tariffs now, not because they are a backsliding of liberal democracy, but as they fail and economic chaos engulfs us, Trump will become more erratic and authoritarian thus accelerating the erosion of democratic values and norms.   

I would also be wary of federal government economic data.  The Departments that report the data, and offices that compile economic and labor data sets, are firmly in Trump’s hand.  Any bad economic data, I fear will be subjected to Trump’s SHARPIE statistical methodology.   

On the positive side, the lower courts for the most part are holding firm. There is the possibility that the judge overseeing the Venezuelan deportation case will hold the Trump administration in contempt this coming week. Stay tuned. Appeal Courts also seem leery of the constitutionality of many of Trump’s executive orders. As a reminder, written arguments for sustaining a pause on Trump’s Birthright citizenship order are due soon.

Below is this week’s summary.  To see the cumulative backsliding list click the benchmark or menu link above.

Diagnosis: Critical.  

Prognosis: Uncertain

Military Loyalty Tests

Trump fires General Timothy Haugh and Wendy Noble, Chief and Deputy Chief of the National Security Agency, America’s critical signals intelligence agency. As a reminder, the NSA is forbidden by law from technical eaves dropping on American citizens.

They were fired at the request of right-wing pundit Laura Loomer for not being sufficiently ‘loyal’ to Trump: Loomer posted on X they were fired for being disloyal to Trump.  Trump in a statement on AF1 heading to Florida, stated people will be fired because we don’t like them or “people that may have loyalties to someone else.”  As the robot in the mid-60s ‘Lost in Space’ TV used to sa, with arms flailing about: “Danger, Danger, Will Robinson.”

These firings come after the firing of several National Security Council Staff earlier in the week, also worryingly at the behest of Laura Loomer.  Press reports indicate Haugh testified in a closed hearing recently and was asked about the Signal scandal.  

Whether the President was angry at Haugh for not giving the party line regarding Signal is unknown but the most likely cause for the firings.  Nonetheless, Trump may have been looking for a reason to fire Haugh and Noble.  Not saying Trump ordered Haugh and Noble to eaves drop on American politicians and others, but that option certainly is a possibility given the rogue nature of these first months of his administration. Frankly, I ask why and how a right-wing pundit with no security clearances may have knowledge of Haugh’s closed door testimony to the Senate. And even more worrisome, why the hell is Trump having sensitive national security discussions with her.

Continued Human and Civil Rights Violations

ICE admits wrongfully detaining Maryland man, says they can’t return him to US from El Salvador prison. Calling it an “administrative error.” Worse, they say they can’t get him back. This man from Maryland — married to an American, and father of a 5-year-old autistic child — was rounded up as part of the Trump’s press event, AKA the mass deportation of Venezuelan gang members.  He was deported back to El Salvador, a country he fled because of gang threats without due process.

Rise of the Government Informer Class

Vigilante surveillance of pro-Palestinian activists on university campus(es).  Pro-Israeli activists are using AI facial recognition to identify and report pro -Palestinian activists/protestors to ICE for deportation, per NBC reporting.  The AI facial recognition was developed for this purpose.  A far-right group — Betar USA –claimed credit for one arrest, per WGBH reporting.

Acts of Cowardice Continue

In an act cowardice and self-censorship, the White House Correspondents Association cancelled comedian Amber Ruffin’s appearance at the White House Correspondent’s Dinner, stating that they had “unanimously decided we are no longer featuring a comedic performance this year.”  This ends a 42-year history.

To avoid executive orders sanctioning them, several more law firms reached agreements with the White House, to include the law firm Wilkie Farr and Gallagher that Kamal Harris’s husband, Doug Emhoff, works for. They offered up $100 million in pro bono work for Trump priorities to avoid possible executive order sanctions.  Through these dragnets, Trump has almost garnered a quarter billion dollars in pro bono legal work for Trump initiatives.

New Punitive Investigations

The FCC began an investigation into ABC’s DEI practices. ABC is part of Disney.

Destroying Civil Society and a blow to Labor Unions

Tens of thousands of additional federal employee layoffs announced.  In addition, Trump bans federal government unions collectively bargaining ability. Agencies included in the ban are the Departments of State, Defense, Veterans Affairs, Energy, Health and Human Services, Treasury, Justice and Commerce and the part of Homeland Security responsible for border security. Police and firefighters will continue to collectively bargain. Another blow to labor unions.

Per CBS, senior officials at NIH terminated or reassigned:  “Senior leaders at multiple agencies were removed, multiple health officials said, including Dr. Jeanne Marrazzo. Marrazzo replaced Dr. Anthony Fauci as the head of the National Institute of Allergy and Infectious Diseases. At the Centers for Disease Control and Prevention, senior officials put on leave and reassigned to the Indian Health Service include Dr. Karen Hacker, head of the agency’s chronic disease teams, Kayla Laserson, head of its global health center and Dr. Jonathan Mermin, director of the CDC’s STD and HIV/AIDS center.”

In a new executive order, President Trump targeted the Institute of Museum and Library Services (IMLS), the federal agency charged with distributing Congressionally approved funds to state libraries and to library, museum, and archives program grant recipients.  The National Endowment for the arts was also targeted for layoffs and funding cuts.

“Vexation:” A Short History of Habeas Corpus in America

The Scene, Act 1

Imagine driving down Fredericks Hall Road in the early hours heading to work, sipping coffee, a black suburban following too close for comfort. Minutes later a sheriff’s deputy car pulls in between you and the suburban, turns on his or her emergency lights.  You pull over into the B&L Mart parking lot, the suburban following the deputy’s car into the lot.  

Out jump agents in camouflage vests, long guns at the ready.  They order you out of the car, pushing you to the ground, cuffing you, your body violated in every sense as they search you.  Before you know it your whisked away in an unmarked van to a non-descript detention center.  Your “Why am I being arrested?” protests ignored. Demands for a lawyers rebuffed. No Miranda warnings. Requests to make phone calls denied.  Within hours a flight, then a prison in a foreign country.

At best this sounds like a screenplay for a cheap, low budget film.  At worst, a nightmare.  Unfortunately, it’s the latter.  The Trump administration has used similar tactics repeatedly over several weeks.  One Maryland man, who was in the U.S. on protected status, was grabbed from the streets, detained, denied due process, and ended up in an El Salvadoran maximum security prison.  The government admitted later he was detained because of an “administrative error,” adding it was powerless to have him returned to the U.S. and his American wife and 5-year-old autistic child.   Several other persons legally in the U.S. have also been individually detained, imprisoned, and marked for deportation without due process.  

In a larger multi-state operation, hundreds of persons were detained and deported during arrests allegedly targeting Venezuelan gang members when Trump invoked the Alien Enemies Act of 1798.  Despite a federal judge’s order to stop the deportations pending court hearings, even ordering the return of flights in progress, the government willfully ignored the order and let the deportations proceed apace, citing that some of the planes were over international waters and therefore beyond their jurisdiction to recall. 

Newsfeeds showed the deportees led off the planes in shackles, moved from point to point by soldiers forcibly doubling them over, heads shaved for TV crew consumption.  A chilling display of dehumanization reminiscent of Nazi deathcamps.  

At the core of these detentions is the secretive nature of the arrests and reluctance and outright vexatious refusal to respond to federal judges’ orders to produce the body in court: The Writ of Habeas Corpus.

Habeas Corpus

Habeas Corpus’s roots go back to Anglo-Saxon times, evolving after the Norman Invasion in 1066, enshrined in the 39th clause of the Magna Carta in the 13th century, and in 1679, put into English law with the Habeas Corpus Act.  The reason for the 1679 Act, from what I can gather from its text, is that Sheriffs and others were claiming not to have received or misplaced writs of Habeas Corpus, causing “great delayes” and “long detaining’s in Prison….to their great charge and vexation.”   Sound familiar to Trump’s government lawyers?

You must put the 1679 Act within the 17th century’s context of the power politics between King and Parliament in England, eventually being settled as part of the Glorious Revolution of 1688/89 and the birth of the English Bill of Rights.  One mustn’t lose one’s head over this history (a little pun off the top of my head), but it is worth recalling.

Americans thought it such a great idea they put it in our Constitution, not once by twice.  It can only be suspended in cases of invasion or rebellion.   The 1789 legislative act creating America’s judicial system gave federal judges the right to issue writs of Habeas Corpus but limited to federal matters.  This power to issue Habeas Corpus writs was expanded after the Civil War in 1867, to include State detentions.  

Rebellion

At the outset of the Civil War, President Lincoln suspended Habeas Corpus in certain regions in April 1861. After the arrest of Marylander John Merryman, who was spirited off to a military fort, Supreme Court Chief Justice Roger Taney (of Dred Scott infamy) — who also oversaw Maryland’s federal circuit court – issued a writ of Habeas Corpus, demanding Merryman be brought before a judge.  Taney argued that only Congress can suspend Habeas Corpus, not the President.  Lincoln refused.

Lincoln’s Proclamation 94, issued in 1862, further expanded the geographic scope of the suspension of Habeas Corpus.  Congress debated the issue of whether the president or congress can suspend Habeas Corpus, as the Constitution is silent on this matter, but came to no definitive conclusion.  In 1863, nonetheless, Congress passed an Act Suspending Habeas Corpus to give Lincoln’s acts legal cover.  Lincoln signed the bill.

Alien Enemies Act 1798

Unfortunately, the Alien Enemies Act has been used to short circuit Habeas Corpus.  The Act has several parts, it includes a declaration of war, or invasion or predatory incursion by a foreign nation or government.  Only then can aliens of these invading nations be rounded up, or as the act states, “shall be liable to be apprehended, restrained, secured and removed as enemy aliens.”  The west coast roundup of Japanese aliens and citizens of Japanese ancestry and their interment in prison camps during the Second World War is one example.  

The round up of alleged Venezuelan gang members under the Alien Enemies Act is absurd.    The gang is not a nation state, it is not part of an invading army or force, and a state of war between the U.S. and Venezuela does not exist.  And by the way, only Congress can declare war.

The War Mindset

This recent short circuiting of Habeas Corpus reveals the mindset of Trump and his administration.  They are at war with parts of America.  And they are using war-time emergency powers such as the Alien Enemies Act to dilute and nullify the Constitution.   Trump is on a war footing where no war exists, and Americans need to take notice.  If you think he will stop at non-citizens or legal permanent residents, I would think long and hard about that proposition.  Just as insidious are those lining up to inform on folks.  Are we heading to a police state?

Think about our neighbors.  Migrants live and work in our community.  Their kids go to our schools. They are a vibrant part of our community and economy.  They build and repair homes, own businesses such as restaurants, gas stations, construction and landscape companies. They pay taxes and shop at local stores. They have the same right to the constitutional protections that we enjoy from unreasonable search and seizure, due process, their day in court.   They should not have to live in fear of disappearing from Fredricks Hall Road and ending up in an El Salvadoran maximum security prison.

Lastly, what can we do?  We have agency, so talk to your representative and express your concerns.  Stress the need for legislative reform.  Ask them to introduce reform bills.  I would start with repealing the Alien Enemies Act and clarify through legislative action who can suspend Habeas Corpus, Congress or the President.  Talk to your neighbors and friends.  Let them know what is going on and what is at stake.

For those on the other side of the aisle who think that Trump is doing is great, I ask you to think down the road.  Restraining a president with expanded Kingly powers will be like holding a wolf by the ears.  The next president may not like you. I hope your Spanish is good.

A New “Remedy:” America’s Social Contract Under Siege

America floundered after the Revolution ended.  A confederation of sovereign states jealously guarding their individual prerogatives, bickering constantly, the central government virtually powerless.  The Articles of Confederation was a disaster.  

In 1786 commissioners from five states met in Annapolis, ostensibly to discuss trade between the states and international trade relationships.  Among the 12 in attendance were James Madison and Alexander Hamilton.  They apparently did not accomplish much, but they did agree to meet the following year in Philadelphia, this time inviting commissioners from all the states.  The stated purpose of the convention was not to develop a new form of government, however, that was precisely what James Madison, among several others, intended.  The convention was to create a new social contract between the people and the states and save the union.

The Philadelphia Convention gathered on May 14, 1787. After waiting for more delegates to arrive they got down to business, debating and agreeing on the rules of Convention.  On May 29th Edmund Randolph of Virginia “opened the main business” of the Convention.  Speaking to the “crisis,” that is the failure of the Articles of Confederation, and “prophecies of the American downfall,” he proposed four objectives “to revise the federal system.  We ought to “inquire 1. into the properties, which such a government ought to possess.  2. The defects of the confederation. 3. the danger of our situation& 4. The remedy.”

That ‘remedy’ has withstood the test of change since the Constitution was adopted by the States in 1789. Two hundred and thirty-six years.  The Constitution was and is not perfect, in fact it was not designed to be infallible, like a religious text proclaiming the word of God.  It was made by humans for humans, and they had the wisdom to recognize that things, well, change.   A Bill of Rights was added early, critical amendments were enacted over the decades.  Slavery was finally abolished (although after 96 years of relentless brutality), African Americans and women won the right to vote, birthright citizenship.   It is the social contract that endures and keeps us bound to one another. It’s what makes us American.

That remedy, that social contract, our Constitution is at risk.  Day after day the current administration attacks America’s social contract.  Executive orders rain down like hail stones, crushing the tender plants in our garden of democracy. If anything, they are messages to his base, a veneer of action, but they are also projecting the America he wants and the social contract he envisions. It isn’t a pretty one.

What happens when his attempts at changing the Constitution through fiat fails.  The Supreme Court says, “no.”  What then?  I doubt he will retreat; he will fight.  One way to fight is to organize a new constitutional convention, a new remedy, a new social contract. Can you imagine Georgia’s delegate being Marjorie Taylor Greene? 

Will our most cherished rights disappear into the ether?  Replaced by an authoritarian social contract?  Emojis of flags and flames and fists. If the convention meets and writes a new constitution, I suspect It will fundamentally alter our relationship to the government, and not in a good way.   

If Trump’s executive orders are a guide, a new social contract will eschew separation of powers, in its place a powerful executive, with unlimited terms.  King like.  Gone will be an independent judiciary, replaced by a Supreme Court appointed by the President, serving at his will. Gone will be the House of Representatives and a Senate, replaced by a unicameral body elected by state representatives, a rubber stamp affair.  A state religion declared.  A Christian religious test to hold office.  Separate but equal codified.

Don’t forget about The Bill of Rights and all amendments that will be nullified. Do you see them offering robust press freedoms?  Protecting you from unreasonable searches and seizures.? What about jury trial, or right to counsel.  Do you see that being in the new social contract?  I see the curtailment of rights, women’s right in particular.   Same sex marriage banned, access to contraception gone (Recall Justice Thomas’ call for cases), homosexuality criminalized.  The list of rights rescinded would go on and on.  It wouldn’t be a positivist social contact it would be negativist one, restricting rights not establishing rights.  It won’t be a mixed government of the one, the few, the many.  It will be the one. Is that an America you can live in?

That’s the social contract I see down the road if people stay at home, keep their heads down, and give in to Trumpian chaos and mayhem. Yes, reform is needed to get money out of the campaigns, stopping politicians from enriching themselves, keep the oligarchs from buying elections like Musk is now trying to buy the Wisconsin Supreme Court race, but a new federal system that gives up on democracy – the many — is not the ‘remedy.’  This new Trumpian social contract would be the opposite of reform, it would turn America not back to 1954 or 1859, or to 1789. It would transform America into an autocracy of one man rule..

This weekend, May 5th, there will be a rally at the Louisa Courthouse from noon to two.  Come have your voices heard.  Celebrate the 238th anniversary of the start of the Constitutional Convention in Philadelphia.

A dear John Letter: A Response to a Letter from Representative John McGuire

Below is a response to an email I received from Virginia’s 5th Congressional District Representative John McGuire. It was written in response to a letter or email I sent to him. I am appreciative and grateful for his response. I expected it would be one of those form letters, pandering and short on substance.

To my delight it was long, specific, and expressed his world view and take on recent controversial actions by the Trump administration, in particular the alleged unlawful deportation of hundreds of alleged Venezuelan gang members to El Salvador’s maximum security prison. To my dismay, it demonstrates a fundamental break in who is and who is not entitled to basic constitutional rights.

The letter below is my response. I will mail him a hard copy.

Dear Mr. McGuire:

Thank you for your email dated March 28, regarding the recent deportation of hundreds of Venezuelans alleged to belong to a criminal gang to an El Salvadoran maximum security prison. I appreciate your candor and directly addressing my concerns. However, I would like you to consider some of my observations regarding your response. They are based on my 29 years of federal law enforcement experiences.

In your letter you stated that “Law enforcement spent weeks drafting the list of deportees to make sure all were connected to the violent Venezuelan Tren de Aragua gang.”  Adding, that if some were mistakenly identified as a gang member, it really didn’t matter because they were in the country illegally: “I am aware there has been some discourse surrounding whether all those deported were connected to Tren de Aragua. I have full faith in our law enforcement, but on the rare chance that some of those who were deported happen to not be gang members they were still here illegally and therefore have committed a crime.”   

I would rather have 150 guilty men go free than imprison 50 innocent men.  It is cruel to send someone who would maybe get six months in a U.S. minimum security prison, than an indefinite stay at a high risk maximum security prison in El Salvador. Cruel and unusual punishment don’t you think?

What you didn’t mention is that despite a Federal District judges order to stop the deportations and return the flights pending hearings for the deportees, the government deported them anyway.  Claiming they were over ‘international waters.’  How could this be if they were over the Gulf of America?  

I believe your claim that you venerate our Constitution, but you seem unaware that our great Constitution has a Habeas Corpus clause.  That is the government must produce “the body” in a court so that the defendant has a right to challenge the charges and their detention.  Basically, that their arrest and confinement were legal.  This fundamental legal concept goes all the way back to the Magna Carta.  That is an 850-year-old tradition bequeathed to us by the British.  And Trump throws it out like yesterday’s trash.  The Judge’s order to stop the deportation was basically a Writ of Habeas Corpus in name and spirit.

I think we can both agree with the proposition that all inhabitants of the United States, regardless of citizenship or immigrant status have the following basic, fundamental human rights we cherish as a nation:

  • The presumption of innocence
  • To be secure from unreasonable searches and seizures (an arrest is a seizure)
  • The right to counsel
  • Right to a speedy and public trial
  • Not to be deprived of life, liberty, property, without due process of law
  • Not subjected to cruel and unusual punishment

The Venezuelans, it appears, were denied every one of these rights enumerated above. I am curious then, why you think these rights do not apply to them?

The arrests and deportations of these Venezuelans is the exact opposite of how our judicial system is supposed to work. The law enforcement agency making the arrests – the ones you have ‘full faith in’ – are not the prosecutor or the judge or the jury.  Our system is designed to be adversarial, where the government must present evidence, to either a grand jury or magistrate before an arrest is made; or, after a warrantless arrest brought before a judge, and in the end convince a jury.

Even the basic right to challenge the government’s assertions of either criminality or being in the country illegally, was denied the Venezuelans, it appears.  From what I can gather, the government presented no evidence.  The court decides whether their detention is legal not ICE or you or Trump.  I can see the discussion now:  Judge, “What proof do you have that the defendant is a gang member?” Agent: “He has gang tattoos.”  Judge: “WTF! Get out of my Court.”  And it goes downhill from there.  

Tattoos? That would be like rounding up everyone who was near Capitol Hill on January 6 wearing a red MAGA hat and deporting them to Guantanamo without due process.  Don’t you think?

Spuriously invoking and using the Alien Enemies Act of 1798, the government denied their rights, disappearing them:  No due process, no right to counsel, no hearing before a judge, sent to prison in El Salvador without trial for indefinite detention.  That should scare the crap out of everyone.  Then, to top off this charade of justice, DHS Secretary Noem shows up in El Salvador for a photo opportunity.  Thank God there were not gravel pits nearby.

I know I can be pedantic about American history, but did you know that the Alien Enemies Act can only be invoked after a declaration of war?  I really, really, really, hope you are aware that only Congress has the constitutional and legal prerogative to declare war.  The President’s use of the Alien Enemies Act was therefore illegal, extra-Constitutional.

You and I both swore an oath to preserve and protect the Constitution. I did my best to uphold that oath and I expect you to faithfully execute that oath for the people of Virginia’s 5th Congressional District.  It’s your duty to challenge these trespasses and gross injustices by Trump, not excuse them.

Listen, I am not against deporting criminal aliens and believe in protecting our borders. One of the last cases I oversaw resulted in a child sex trafficker getting 25 years in federal prison. But let me ask you this, why protect our borders when a sitting president destroys the country from within by attacking the fundamental rights we agree are essential to this great country’s democracy? When police ‘gather lists’ at the direction of political leaders we are in dangerous territory. Whatever you think ails this country, strangling democracy to save it is not the right answer.

Thank you and I look forward to our continued dialog.

Tom’s Report on the State of America’s Democratic Health

As of March 28, 2025

Weekly Summary of Key Benchmarks of Democratic Backsliding and Erosion

What a week. Trump continued his assault on the 6th Amendment, the right to counsel, and the 1st Amendment through executive action targeting law firms. It has become a pattern, no a policy, of this administration to threaten, extort, strong arm law firms it considers “vexatious” by executive order. A modern day version of Bills of Attainder.

According to NBC, Trump issued a new memorandum March 22 titled “Preventing the Abuses of the Legal System and the Federal Court.”  The memo gives AG Bondi the power to revoke security clearances of attorneys and terminate federal contracts of law firms if she deems their lawsuits against the administration are “unreasonable” or “vexatious.”

Also this week, Trump signed an executive order against the law firm Jenner and Block, a law firm with clients litigating Trump administration actions. The law firm also has some connection to Robert Muller.  

In a disappointing move, one targeted law firm capitulated to Trump.  The law firm Paul Weiss, Rifkind, Wharton & Garrison LLP bowed to Trump at a White House meeting following a Trump Executive Order targeting the law firm’s business.  They admitted wrongdoing of a former partner who left the law firm in 2021 to work the New York City’s District Attorney’s Office which prosecuted Trump’s Porn Star payoff case;  offered $40 million in free pro bono legal work supporting Trump administration initiatives; change their DEI hiring practices. Who would want to hire a law firm like that?  

Trump continued to use police powers to violate the 1st Amendment right to dissent and assembly, focusing on foreign nationals legally in the U.S. A Tufts University PhD candidate of Turkish origin was arrested by ICE in an undercover takedown usually reserved for drug dealers. A federal judge ordered that the detainee remain in Massachusetts pending court hearings. In a bold and illegal subversion of Habeas Corpus, ICE engaged in a game of find-and-seek and the detainee ended up in a detention facility in Louisiana. I can’t imagine the terror and fear this woman must feel at this nightmare unfolds. This flagrant attack on the judicial system is a pattern of this administration. The slow slide in to authoritarian rule is in full expression this week.

Secretary of State Marco Rubio, a second generation Cuban-American whose grandfather fled Fidel Castro’s regime, announced that over 300 student visas had been revoked for students engaging in political activism, who he labeled “lunatics.” How sad that it only took one generation to turn from asylum seeker to despot.

For a detailed cumulative list of benchmarks charting our country’s slide into despotism please click the ‘Benchmark’ link above.

Let me know how I am doing. Leave a like or a comment. Thanks.

DOGE gets to Audit State Voter Rolls in New Executive Order:  Right to Vote in Mid-Terms Threatened?

Yesterday Trump signed an executive order permitting the federal government to regulate federal elections at the state level.  The order, entitled “Preserving and Protecting the Integrity of Elections” not only violates the constitutional prerogatives of Congress and the States to regulate and run elections respectively, but repeats timeworn jeremiads of Trump’s favorite election fraud conspiracies.  

The courts should and will issue a pause or injunction because of its blatant unconstitutionality. Bizarrely, it permits DOGE to access state voter rolls to conduct audits.  Yes, DOGE, that extralegal secretive government organization run by an unelected billionaire.  Will any notification of suspension of voting registration come with a Tesla flyer? If you don’t believe me here is the language in the order:

“the Department of Homeland Security, in coordination with the DOGE Administrator, shall review each State’s publicly available voter registration list and available records concerning voter list maintenance activities as required by 52 U.S.C. 20507, alongside Federal immigration databases and State records requested, including through subpoena where necessary and authorized by law, for consistency with Federal requirements.” 

Setting the constitutionality of the order aside, it underscores Trump’s disturbing mindset and the fantasy world his legal advisors live in.  Every day it’s like going down Alice in Wonderland’s rabbit hole into a fantastical White House of gibbering lunatic imbeciles.

This is one of the most undisguised attempts to purge millions of registered voters since the end of Reconstruction.  Sowing chaos into the mid-terms is its goal. If America’s past is precursor, DOGE’s audits no doubt will target primarily black and brown voting districts.  Regardless, if you are a registered voter fear losing the right to vote.

Today, please Send an email, write a letter, or call your representative to complain of this latest assault on our rights.

Tom’s Report on the State of America’s Democratic Health

As of March 21, 2025

Benchmarks of Democratic Backsliding and Erosion

Leading the list of abuses this week was Trump’s unconstitutional declaration of war and invocation of the Aliens Enemies Act of 1798; timed to the mass deportation of 200 plus alleged Venezuelan gang members to El Salvador and indefinite imprisonment in a maximum security prison with a history of human rights abuses.

Compounding this mass injustice was Trump’s call to impeach the federal judge who ordered a stop to the illegal deportations, cancelation of flights, and return of flight already in the air. This judicial order — in reality invoking Habeas Corpus a legal right that goes back to the Magna Carta — was ignored. The government lawyers even had the audacity to claim that it was too late because flights were over international waters by the time the written order was received even though the judge had orally ordered the stop earlier in court to the lawyers. Ironically, the flights were over the Gulf of America. How symbolic of how low Trump has sunk.

Rep. Jim Jordan has already planned hearings regarding the judge’s legal rulings. Elon Musk made max donations to members of Congress friendly towards the idea of impeaching judges who rule against Trump.

This is what happens after years of right wing rhetoric turning migrants into criminals. We know nothing about these men because they were disappeared without due process, the right to counsel. They had become unworthy victims in the eyes of too many Americans. I get rights, you don’t. That is not how American works. I think someone famous once said, “You shall do no injustice in court. You shall not be partial to the poor or defer to the great, but in righteousness shall you judge your neighbor.”

Of course Trump’s speech to the assembled staff of the Department of Justice where he rallied against the illegal press is of note. This attack on the press and free speech by a sitting President at the Justice Department is unprecedented.

Of additional note, is that government lawyers have determined that the Aliens Enemies Act permits government agents to enter homes without warrants. I presume under some Frankenstein interpretation of the ‘hot pursuit doctrine’ permitted by the Supreme Court. This determination would be in conflict with the bill of rights 4th Amendments protections from government intrusions and seizures without warrants. It suggests a government inching closer to declaring martial law.

I added a Friday Follies of all the sycophantic legislative bills introduced to kiss Trump’s derrière by fawning state and federal lawmakers. Got to have some sense of humor in this time. New entries to the benchmarks cumulative list of trespasses are in bold

For the full report please go to the menu and select Benchmarks. Thanks.

Lead, Follow, or Get Out of the Way

This past Sunday Democrats held an innovative multi-county town hall meeting in Goochland County, Virginia.  The invited guest, Rep. John McGuire (R), who represents Virginia’s 5th congressional district, did not accept the offer to speak to his beloved constituents.  In his place stood a cardboard avatar of McGuire, sporting a long, long, long, red tie, cartoon speech balloons emanated from his head. It reminded me of 18th century satirical political cartoons by William Hogarth.  

It was standing room only, a spirited, eclectic gathering.  Most were women, a good number of veterans, and a few former Republicans sprinkled among us. A microcosm of rural America: farmers, veterans, small business owners, local government employees, a few ministers, a good show of teachers, retirees, and some young’uns.   Some were in their Sunday best, either coming from or going to Church.  

McGuire’s replacement avatar and speaker was a civil rights attorney from Albemarle County.  After introductions he took questions and offered observations about McGuire and directly addressed Chuck Schumer’s about face on the Continuing Resolution to fund the federal government.  I think his comments reflected the general mood of the crowd: anger and frustration at Schumer.

The overall tenor of the questions asked was one of concern, fury, and annoyance at Trump and Musk.   These concerns, anger, and frustration were not reserved only for Trump, but at national Democrat leadership in Congress as well:   Where is it?  What’s the opposition strategy?  If you did a word count of participants comments, I think “fight” would be at the top of the list.  The verb, not the noun.

My takeaways from the town hall are that folks are not only worried about Trump’s reckless assault on our Constitution but also troubled by the lack of a will to fight and take risks by national Democratic Party leadership.  Schumer’s about face and capitulation, being Exhibit A.   The lack of an articulated strategy to respond to the erosion of democracy being Exhibit B.  No mid-term election plan, Exhibit C. 

It seems folks feel rudderless in a tempest, watching the ship of state drift closer to the shoals, the captain nowhere to be found, lifeboats swept away.  I imagine leaders in local Democratic party organizations are themselves frustrated at the national leadership.  I see the fatigue in their eyes and hear it in their voices. They are leaning hard into the the headwinds trying to thwart our democracy. They deserve better from national leadership.

I get the sense that folks desperately want to participate in meaningful opposition but only have timeworn responses in their tool kit:  write letters; email or call your representatives; show up for town halls; boycott businesses that support Trump.  These measures seem futile, like using little adhesive band aids when one needs a trauma kit, a tourniquet to keep America’s democracy from bleeding out. 

When I found out a day or two after the town hall that Schumer cancelled his tour to hawk his new book because of security reasons, my first thought was, ‘book tour?” WTF? Really, Rome is burning, and he is going on a book tour.  What doesn’t he get?  It just highlights that the intellectual framework that guides his notion of being a Senator is dated, like orange shag carpets and lava lamps.  He clings to a nostalgic past to the detriment of our future. 

No need to hit the panic button, but time is not on our side, given Trump’ frantic pace to undo democracy. The mid-terms are too far off to make any real, immediate course corrections.  The national Democratic Party leadership needs to get off its’ ass.  Trust us.  We will do the right thing if given the chance, but it requires tough national leadership that is willing to take risks, carry the flag at the front.  At my infantry basic course our motto was:  “Lead, follow, or Get out of the Way.”  Mr. Schumer, get out of the way.