Tag: habeas corpus

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

As of May 16, 2025

Benchmarks of Democratic Backsliding and Erosion

The big issue this week was the arguments before the Supreme Court regarding the Trump’s executive order eliminating birthright citizenship.  The arguments were more about whether federal district judges can issue nationwide injunctions, or pauses, not so much the constitutionality of the executive order itself.  

The justices, from what I gathered, seemed conflicted about whether to limit federal judges ability to issue nationwide injunctions, especially if letting the law go into effect nationwide will cause great harm while the case winds its way through the courts.  I would think revoking birthright citizenship, or invoking the Alien Enemies Act, or suspending the Writ of Habeas Corpus would fall into that category of immense national harm should the executive order or law be permitted to go forth while it is being fought over in the courts. 

It the Supreme Court limits nationwide injunctions, it would have to devise a clear set of rules for when a judge may order a nationwide injunction or limit the injunction to their district.  I don’t see that happening, if they do, they are crazier than I thought.  Or worse yet, rule that federal district court rulings are limited to the district in which the court resides.  There are 94 federal court districts, chaos would ensue.  

If the Court eliminates nationwide injunctions outright while the constitutionality of the law is being challenged, that would trigger the very real possibility that half the country will have one set of constitutional rights while the other half would have a different set of constitutional rights. For example, if Trump suspends the Writ of Habeas Corpus, five or six district judges may impose an injunction in their districts, but a district in Texas where an immigrant detention facility is located, may not see the suspension of the Writ as unconstitutional.  That would then permit hundreds if not thousands of deportations without due process. The harm would be immense.

In another important ruling, the Supreme Court did extend a block on deporting migrants from Texas using the Alien Enemies Act today (May 16).  Sending the case back to a lower court for additional litigation.

Republicans should be wary of Trump getting his way on this issue of nationwide injunctions and executive orders.  The next Democratic president could declare that the second amendment does not protect the manufacture or possession of AR-15 or similar type weapons.  The president could use an executive order to prohibit the possession, manufacture, sale, and transportation of these items across state lines.  

Republicans are painting themselves into a very small separation of powers corner.  Mitch McConnel basically shanked the Senate years ago.  Mike Johnson turned the House of Representatives into a spittoon full of, you know spit.  Chief Justice John Roberts, just can’t get his head out of his butt, all but declaring Trump King last term. Although, I must say, after creating this Frankenstein presidency, he is doing his best to cage the beast.

Republicans act as if the Democrats will be forever in the wilderness, a token political party for show during elections, but powerless.  If that was their goal, we shall see how they react to losing in the mid-terms and in 2028  Will they accept the outcome(s)?  And once the Democrats return to power, how can they ever, ever, claim overreach?

Amazingly, because of court action and popular backlash to the excesses of the Trump White House by DOGE — and don’t forget the tariff mess — the guard rails are bending, but still in place in some places.  Where the guardrails are missing is Congress.  They are not checking the accumulation of congressionally enumerated powers into the executive branch and seem not to have any interest in checking his power, mostly out of fear I suspect. Then again, some just that holy grail, $5 trillion in tax cuts. most of which will go to the top 1 percent (that is them and their millionaire class)

Some examples of Congressional nonfeasance revolve around Trump’s personal corruption and  profiteering from office .  For instance his ongoing attempt to accept a $400 million 747 from the Emir of Qatar for use as Air Force 1, and it being ‘decommissioned’ and transferred to his presidential library foundation following his presidency; his sale contest of  $Trump (a crypto currency) for White House tour (access?); pocketing tens of millions of dollars in crypto fees through the Trump family’s World Liberty Financial, are all examples of Republicans in Congress looking the other way while Trump engages in what appears to be unconstitutional and corrupt practices.

While there have been some tactical and strategic setbacks for Trump, as the initial 100 days passes into the next 60 days, we are not out of harms way. He will become more dangerous. And, like a trapped and cornered animal, will attack, hard and fierce.  Hang on, it will be like holding on to the ears of an angry wolf.

For a cumulative list of backsliding and erosion of our democracy, please click ‘benchmarks’ or menu above. Updates are in bold.

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

As of May 9, 2025

I apologize for skipping a week (or two), but was traveling out of town. I also needed a short mental holiday.

The courts are doing their job for the most part. Congress….not so much.

A federal Judge ordered the release of detained Turkish PhD student Rumeysa Ozturk, who is attending Tuft’s University on a student visa, following the submission of a Writ of Habeas Corpus. In its usual measured response to adverse court orders, Trump advisor Stephen Miller said the White House is actively considering revoking the Writ of Habeas Corpus for ‘migrants.’ The Constitution clearly states that the writ may not be suspended “unless when in Cases of Rebellion or Invasion the public safety may require it.” Please see my earlier April 2 essay on Habeas Corpus for a more in-depth discussion on the writ.

In another ruling, a federal judge in San Francisco issued a temporary pause on DOGE’s bulldozing of government agencies and mass firings. Congress did not authorize such activity, per the judge: “As history demonstrates, the President may broadly restructure federal agencies only when authorized by Congress.”

In further court activity regarding Abrego Garcia, who was wrongly detained and deported to El Salvador’s terrorism prison, government lawyers are once again stonewalling the Federal Judge overseeing the case. Government lawyers invoked the ‘State Secrets Privilege.’ This privilege (a Supreme Court invention) lets the government withhold information from a court during civil litigation if the information could damage national security. Unless the information the government lawyers have contain military invasion plans of El Salvador, it is a bullshit ploy. And they know it. Start throwing these bums in jail Judge! Maybe Alcatraz?

Overall, there has been a slight lull in the war on the Constitution, but I think that is because Trump is busy cleaning up his self inflicted tariff mess. If his nomination of Fox host and TV pundit Jeannie Pirro to be the U.S. Attorney for the District of Columbia — replacing the outgoing interim U.S. Attorney who can’t get confirmed — is any indication, the war on decency and rule of law is entering a new low point. She has not worked in the law field in over two decades and her only previous experience was at a local elected judge and then local prosecutor in the early 90s. She will also be the 23rd Fox News personality to get a Trump administration job.

I imagine as the American economy stalls and the U.S. becomes increasingly isolated as a global pariah, Trump will double down on his autocratic tendencies. He pretty much has usurped Congress’ authority, now he needs to go hard and fast after independent new organizations. I expect to see a slew of FCC preliminary investigative reports and license revocations within the next month or two.

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. 

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.