Posted on 03/27/2025 7:15:55 AM PDT by george76
Judge Boasberg blocks Trump’s use of the Alien Enemies Act to deport Tren de Aragua, despite intelligence linking the gang to Venezuela’s government and acts of sabotage in the U.S.
As President Trump fulfills his campaign promise to deport criminal illegal aliens, a blatantly corrupt judge is trying to stop him. Judge James Boasberg, Chief Judge of the U.S. District Court for the District of Columbia, has abandoned all pretense to fairness. I will leave it to others to focus on his conflicts of interest (the FISA Court, his wife, his daughter) and his double standard of justice.
This article is based on an intelligence briefing and refutes Boasberg’s central argument—that it is inappropriate for President Trump to apply the Alien Enemies Act against Tren de Aragua (TdA). Boasberg said TdA is not a foreign government against whom the United States has declared war. But that is a deliberate misreading of the text of the law. The law is quite simple. Here it is, in its entirety:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever 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. [Emphasis added]
The law states clearly that the predicates for invoking the Act include “any invasion or predatory incursion attempted … by any foreign nation or government” and that “the President shall make public declaration of the event.” Are those conditions met?
The president made the required declaration. On March 15, he issued the official proclamation: “I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”
But does the situation meet the other criteria? Is the criminal gang activity of Tren de Aragua “perpetrated, attempted, or threatened by a foreign nation or government?”
An extraordinary article last week by Miami Herald investigative reporter Antonio Maria Delgado provides clear answers. Delgado interviewed a team of high-level investigators and analysts who have been following the Venezuelan regime for over ten years. The only team member to speak on the record is Gary Berntsen, among the most highly decorated CIA veterans in recent history. I spoke with Berntsen after the article was published. He confirmed that Tren de Aragua was purposely sent to the United States to destabilize our country.
Antonio Delgado quoted Berntsen: “The Venezuelan regime has assumed operational control of these guys [Tren de Aragua] and has trained 300 of them; they have given them paramilitary training, training them to fire weapons and how to conduct sabotage. They have given them all like a four- to six-week course. They put these 300 guys through that course, and then they were deploying them into the United States to 20 separate states.”
Berntsen confirmed those details to me and expanded on them. “Remember, sabotage includes arson,” he said. “Many of these wildfires, industrial fires, the Los Angeles fires, taking advantage of wind and the local conditions, were started by arsonists. How many of them were paid or coerced by TdA or their surrogates?”
Berntsen is coming forward now because two CIA officials leaked false intelligence to the New York Times recently, claiming the agency has no intelligence connecting TdA with the Venezuelan government. But Berntsen showed me proof of the close relationships among Tren de Aragua, the Venezuelan military and intelligence apparatus, Cuban intelligence, and the worst of the Latin American narcoterrorists. He has shared not only the intelligence but also the sources with elements of the U.S. government.
“The CIA doesn’t have the information because they refused to look at it,” Berntsen said. “We tried to brief them about this three years ago, but they were directed by the Biden Administration to ignore it. And now those officials are trying to undermine President Trump.”
President Trump pointed out the tight relationship in his declaration.
“Tren de Aragua … operates in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela, and commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking.”
Tren de Aragua is a designated Foreign Terrorist Organization (FTO) that operates under the direction of a foreign government in conjunction with other FTOs. It is funded and assisted by narcotraffickers and Mexican drug cartels. It has entered the U.S. clandestinely with the express goal of undermining and destabilizing our country and attacking our citizens. It is set on sabotage, including arson, and is probably responsible for over $300 billion in fire damage in the past year alone.
Review the record:
Predatory? Yes.
Incursion? Yes.
Invasion? Yes. A light brigade-sized force of military-aged men entered our country without permission.
Perpetrated by a foreign nation or government? Yes. TdA was trained, directed, assisted, and funded by the government of Venezuela and its criminal allies, who have more firepower than the military forces of several nations.
Judge Boasberg has no cause to reject President Trump’s invocation of the Alien Enemies Act. President Trump has followed the requirements of the law to the letter. The law applies to many other criminal illegal aliens. President Trump is right to stand firm and protect America and the American people.
Is Tren de Aragua a Military Incursion? You Bet!
You bet, you lose.
J.G.G. v. Trump, 25-5067 (DC Cir., 26 Mar 2025), Opinion of Judge Henderson
At 14:
But conditional questions—the legal meaning of war, invasion and predatory incursion—are well within courts’ bailiwick.
At 21-23:
b. Predatory IncursionThe government finds no safer refuge in the alternative “predatory incursion.” The government defines the term as “(1) an entry into the United States, (2) for purposes contrary to the interests or laws of the United States.” Gov’t Br. 18. And it explains that illegal immigration and drug trafficking readily qualify under that standard. As before, the government misreads the text, context and history. An incursion is a lesser
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form of invasion; an “[a]ttack” or “[i]nvasion without conquest.” Samuel Johnson, Incursion, senses 1 & 2, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773). Its predatory nature includes a “[p]lundering,” such as the “predatory war made by Scotland.” Id., Predatory, sense 1. Secretary of State Thomas Pickering used the term to describe a lesser form of attack that France could conduct against the U.S. and which, in his view, could be repelled by the militia. See Letter from Thomas Pickering to Alexander Hamilton (June 9, 1798), in Founders Online [https://perma.cc/VD5MQSNA]. This was raised in contradistinction to a full invasion, which would require an army. Id. Rep. Otis likewise described a predatory incursion as a lesser form of invasion or war. 8 Annals of Cong. 1791 (1798). Early American caselaw sounds a similar theme: incursions referred to violent conflict. Alexander Dallas, appearing before the Marshall Court, described “predatory incursions of the Indians” onto Pennsylvania’s frontier, which had led to “an Indian war.” Huidekoper’s Lessee v. Douglass, 7 U.S. (3 Cranch) 1, 11 (1805).8 Chief Justice Marshall referred to “incursions of hostile Indians,” which involved “constant scenes of killings and scalping,” and led to a retaliatory “war of extermination.” Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10 (1831); accord Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 545 (1832) (explaining that Pennsylvania’s royal charter included “the power of war” to repel “incursions” by “barbarous nations”). Like its statutory counterparts, predatory incursion referred to a form of hostilities against the United States by another nation-
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8 Alexander Dallas was a lawyer and the first reporter of Supreme Court decisions responsible for the “Dallas” series. He later served as Secretary of the Commonwealth of Pennsylvania, U.S. attorney for the Eastern District of Pennsylvania and Secretary of the Treasury.
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state, a form of attack short of war. Migration alone did not suffice.
This article is based on an intelligence briefing and refutes Boasberg’s central argument—that it is inappropriate for President Trump to apply the Alien Enemies Act against Tren de Aragua (TdA). Boasberg said TdA is not a foreign government against whom the United States has declared war. But that is a deliberate misreading of the text of the law.
The article fails utterly as a refutation of anything. What it now needs is a letter with the signatures of 51 intelligence experts.
The law states clearly that the predicates for invoking the Act include “any invasion or predatory incursion attempted … by any foreign nation or government” and that “the President shall make public declaration of the event.” Are those conditions met?
No, clearly the conditions are not met. TdA is not a nation or government, and there is nothing approaching a war, invasion, or predatory incursion.
The president made the required declaration.
The president made a declaration—one that was woefully inadequate.
On March 15, he issued the official proclamation: “I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion.....
On March 26, 2025 Circuit Court Judge Hendderson stated in her Opinion that the government failed in its effort to redefine nation and predatory incursion. The Circuit Cpurt rejected the government bullcrap story.
Against the government redefinition of invasion Judge Henderson states at 16-21:
a. InvasionBegin with the text. The term “invasion” was a legal term of art with a well-defined meaning at the Founding. It required far more than an unwanted entry; to constitute an invasion, there had to be hostilities. As one leading dictionary of the era specifies, an invasion is a “[h]ostile entrance upon the right or
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possessions of another; hostile encroachment,” such as when “William the Conqueror invaded England.” Samuel Johnson, Invasion, sense 1, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773). As another recounts, an invasion is a “hostile entrance into the possession of another; particularly the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force.” Noah Webster, Invasion, sense 1, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). And because the invasion must be “by any foreign nation or government,” 50 U.S.C § 21, that entity would be an invader—i.e., “[o]ne who enters the territory of another with a view to war, conquest or plunder.” Webster, Invader, sense 1.
Next, look to context. The term “invasion” appears as part of a list of three interrelated terms: (i) “a declared war” or “any” (ii) “invasion” or (iii) “predatory incursion.” The basic interpretive principle of noscitur a sociis counsels reading an ambiguous word that appears in a list of related terms in light of the company it keeps. See Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961). There could be a congressionally declared war, an invasion by the belligerent government or a lesser incursion into the United States. Each could trigger a formal change in relations between the United States and the hostile power under the law of nations, and, in turn, the relationship of America to that nation’s people. The surrounding statutory context confirms as much.
First, the invasion must be “against the territory of the United States by any foreign nation or government.” 50 U.S.C. § 21 (emphasis added). The requirement that the “invasion” be conducted by a nation-state and against the United States’ “territory” supports that the Congress was using “invasion” in
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a military sense of the term.5 See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 131 (1807) (describing levying war against the United States as “a military enterprize . . . against any of the territories of the United States”); Wiborg v. United States, 163 U.S. 632, 633 (1896) (explaining that a group of seamen were charged with preparing for a “military expedition . . . against the territory and dominions of a foreign prince”). Undesired people do not arrive against the territory. But foreign armies can—and as the 1798 Congress feared might—invade the territory of the United States.6 Second, the invasion may be actual, “attempted, or threatened.” 5 U.S.C. § 21. Again, when used in reference to hostilities among nations, an attempted or threatened invasion of the United States would mark a logical trigger for enhanced presidential authority. Third, and relatedly, the conditional list of triggering events—a declared war, invasion or predatory incursion—must be read against the means the Congress employed to combat the same. The AEA authorizes the President to restrain and remove the nationals of a belligerent foreign power. Such power tracks when invasion is considered in its military sense.
Finally, consider history. The Alien Enemies Act was enacted by the Fifth Congress amid an actual conflict—the Quasi-War—with France, a foreign power. War was front and
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5 Invasion had a secondary meaning at the Founding that described “[a]n attack on the rights of another; infringement or violation” of “the rights of another.” Webster, Invasion, sense 2; see THE DECLARATION OF INDEPENDENCE para. 7 (U.S. 1776) (accusing the Crown of an “invasion on the rights of the people”); id. para. 8 (returning to a military connotation of invasion). By focusing on territory rather than individuals or rights, the Congress made plain it was using the military sense of the term.
6 Although TdA and other drug cartels are reported to control portions of other countries, that is not the case in the United States.
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center in the minds of the enacting legislature. A little over one month before enacting the AEA, the same Congress authorized the President to raise a standing army of 10,000 men to combat any French invasion. But he could do so only “in the event of a declaration of war against the United States, or of actual invasion of their territory, by a foreign power, or of imminent danger of such invasion.” Act of May 28, 1798, ch. 47, § 1, 1 Stat. 558. This language bears more than a passing resemblance to the language of the AEA, which the Congress enacted a mere thirty-nine days later. In his most famous exposition against the Alien and Sedition Act, Madison explained that an “[i]nvasion is an operation of war.” James Madison, Report of 1800 (Jan. 7, 1800), in Founders Online [https://perma.cc/2D3N-N64Z]. In such times, the “law of nations” allowed for the expulsion of alien enemies as “an exercise of the power of war.” Id.
Debates in the Congress surrounding ratification of the Alien and Sedition Acts support this read. Rep. Joshua Coit of Connecticut warned that the United States “may very shortly be involved in war” against France and that the “immense number of French citizens in our country” could threaten the Republic. GORDON S. WOOD, EMPIRE OF LIBERTY 247 (2009). Rep. James Bayard of Delaware pushed back on critics of the new laws by warning of aliens who might be “likely to join the standard of an enemy, in case of an invasion.” 8 Annals of Cong. 1966 (1798). Rep. John Allen of Connecticut cautioned that the country could not “wait for an invasion, or threatened invasion” before granting the power to the President to remove aliens, noting that multiple European powers had fallen to France “by means of [alien] agents of the French nation.” Id. at 1578. Opponents of the Acts contested their constitutionality and warned that—if accepted—they could lead to the suspension of habeas corpus, which is allowable “in cases of rebellion or invasion.” Id. at 1956 (Statement of Rep. Albert
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Gallatin of Pennsylvania) (citing U.S. Const. art. I., § 9, cl. 2) (emphasis added). Supporters disputed that any suspension would occur, id. at 1958, but did not dispute that the AEA drew on wartime powers. On the contrary, they invoked, among other authority, the Congress’s “power . . . of providing for the common defence,” id. at 1959 (statement of Rep. Gray Otis of Massachusetts) and the President’s “powers which [he] already possesses, as Commander-in-Chief.” Id. at 1791.7
This should come as no surprise. The term “invasion” was well known to the Fifth Congress and the American public circa 1798. The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense. For example, the Guarantee Clause provides that “[t]he United States shall . . . protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” U.S. Const. art. IV, § 4. The clause is a federal guarantee to the states against attack from without (invasion) or within (insurrection). In describing the clause, the Federalist Papers refer to invasion and domestic violence as “bloody” affairs involving “military talents and experience” and “an appeal to the sword.” The Federalist No. 44 (J. Madison). To effectuate the guarantee, the Congress has power “[t]o provide for calling forth the Militia to . . . suppress Insurrections and repel Invasions.” U.S. Const. art. I, § 8, cl. 15. Again, to use military force against invasion. During these exigent times of hostilities—“in Cases of Rebellion or Invasion”—the Congress may suspend “The
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7 Although “legislative history is not the law,” Azar v. Allina Health Servs., 587 U.S. 566, 579 (2019), it can provide some probative evidence of the original public meaning of the text. And here, congressional debates squarely accord with the plain meaning of the text in context and are thus “extra icing on a cake already frosted.” Van Buren v. United States, 593 U.S. 374, 394 (2021).
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Privilege of the Writ of Habeas Corpus . . . when . . . the public Safety may require it.” Id. art. I, § 9, cl. 2. Finally, if the federal guarantee fails, a state may exercise its Article I power to “engage in War” but only if “actually invaded, or in such imminent Danger as will not admit of delay.” Id. art. I, § 10, cl. 3. When the Constitution repeats a phrase across multiple clauses—and the early Congresses echo that phrase in statute— it is a strong signal that the text should be read in pari materia. See 2B Shambie Singer & Norman J. Singer, Sutherland Statutes & Statutory Construction (7th ed. Nov. 2024 update) § 51:1–3; Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 788–91 (1999). The theme that rings true is that an invasion is a military affair, not one of migration.
What evidence does the government muster against the weight of this evidence? It marshals a lone contemporary dictionary and then plucks the third-order usage of the term after skipping over its (still) more common military meaning. See Gov’t Br. 17 (citing Invasion, sense 3, Black’s Law Dictionary (12th ed. 2024)). But see id., sense 1 (“[a] military force’s hostile entry into a country or territory”); cf. District of Columbia v. Heller, 554 U.S. 570, 577 (2008) (“Normal meaning . . . excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.”).
But does the situation meet the other criteria? Is the criminal gang activity of Tren de Aragua “perpetrated, attempted, or threatened by a foreign nation or government?”
No, Tren de Aragua is not a foreign nation or government.
As Judge Henderson said, "Like its statutory counterparts, predatory incursion referred to a form of hostilities against the United States by another nation-state, a form of attack short of war. Migration alone did not suffice."
An extraordinary article last week by Miami Herald investigative reporter Antonio Maria Delgado provides clear answers.
Investigative reporter Antonio Maria Delgado, never heard of him, along with the government, lost in the Circuit Court.
The only thing extraordinary is that this pile of crap made it to print the day after all of its points were annihilated at the Circuit Court.
Berntsen is coming forward now because two CIA officials leaked false intelligence to the New York Times recently, claiming the agency has no intelligence connecting TdA with the Venezuelan government.
Regardless of whether TdA does, or does not, have some undescribed connection to the Venezuelan government, TdA is neither the nation of Venezuela, nor the government of Venezuela.
Invasion? Yes. A light brigade-sized force of military-aged men entered our country without permission.
TdA is a non-state actor and is legally incapable of staging an invasion as that term is used in the AEA of 1798.
Perpetrated by a foreign nation or government? Yes. TdA was trained, directed, assisted, and funded by the government of Venezuela and its criminal allies, who have more firepower than the military forces of several nations.
No. Not perpetrated by a foreign nation or government. TdA is neither a foreign nation nor a government. Neither is the CIA the nation of the United States, nor is it the government of the United States.
Judge Boasberg has no cause to reject President Trump’s invocation of the Alien Enemies Act. President Trump has followed the requirements of the law to the letter. The law applies to many other criminal illegal aliens. President Trump is right to stand firm and protect America and the American people.
The government failed to follow the law, and Judge Boasberg was upheld on the merits at the Circuit Court. There is no legal question that the the matter is subject to judicial review. The government actions have now been reviewed in two courts and found wanting. The government positions that TdA is a nation, and that there was an invasion or predatory incursion is legally preposterous.
https://www.loc.gov/item/usrep144047/
Lau Ow Bew v United States, 144 US 47, 61-62 (1892)
By general international law, foreigners who have become domiciled in a country other than their own, acquire rights and must discharge duties in many respects the same as possessed by and imposed upon the citizens of that country, and no restriction on the footing upon which such persons stand by reason of their domicil of choice, or commercial domicil, is to be presumed;
https://www.loc.gov/item/usrep149698/
Fong Yue Ting v United States, 149 U.S. 698, 713 (1893)
The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene.
https://www.loc.gov/item/usrep194279/
Turner v. Williams, 194 U.S. 279 (1904)
It is contended that the act of March 3, 1903, is unconstitutional because in contravention of the First, Fifth and Sixth Articles of Amendment of the Constitution, and of sec tion 1 of Article III of that instrument; and because no power "is delegated by the Constitution to the General Government over alien friends with reference to their admission into the United States or otherwise, or over the beliefs of citizens, denizens, sojourners or aliens, or over the freedom of speech or of the press."Repeated decisions of this court have determined that Congress has the power to exclude aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers; that the deportation of 'an alien who is found to be here in violation of law is not a deprivation of liberty without due process of law, and that the provisions of the Constitution securing the right of trial by jury have no application. Chae Chan Ping v. United States, 130 U.S. 581; Nishimura Ekiu v. United States, 142 U.S. 651 ; Fong Yue Ting v. United States, 149 U.S. 698 ; Lem Moon Sing v. United States, 158 U.S. 538; Wong Wing v. United States, 163 U.S. 228; Fok Yung Yo v. United States, 185 U.S. 296; Japanese Immigrant Case, 189 U.S. 86; Chin Bak Kan v. United States, 186 U.S. 193; United States v. Sing Tuck, 194 U.S. 161.
https://www.loc.gov/item/usrep185296/
Fok Yung Yo v. United States, 185 U.S. 296 302-303 (1902)
The doctrine is firmly established that the power to exclude or expel aliens is vested in the political departments of the Government, to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to such regulations, except so far as the judicial department is authorized by treaty or by statute, or is required by the Constitution, to intervene. Fong Yue Ting v. United States, 149 U.S. 698; Lem Moon Sing v. United States, 158 U.S. 538; Li Sing v. United States, 180 U.S. 486.And as a general proposition this must be true of the privilege of transit. The underlying principle is thus stated by Kent, (vol. 1, p. 35): "Every Nation is bound, in time of peace, to grant a passage, for lawful purposes, over their lands, rivers, and seas, to the people of other States, whenever it can be permitted without inconvenience; and burthensome conditions ought not to be annexed to the transit of persons and property. If, however, any government deems the introduction of foreigners, or their merchandise, injurious to those interests of their own people which they are bound to protect and promote, they are at liberty to withhold the indulgence. The entry of foreigners and their effects is not an absolute right, but only one of imperfect obligation, and it is subject to the discretion of the government which tolerates it."
In short, the privilege of transit, although it is one that should not be withheld without good cause, is nevertheless conceded only on such terms as the particular Government prescribes in view of the well-being of its own people. If then these regulations have the force of law, they bind the courts.
https://www.loc.gov/item/usrep142651/
Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892)
It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vattel, lib. 2, §§ 94, 100; 1 Phillimore (3d ed.) c. 10, § 220. In the United States this power is vested in the national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the government, and may be exercised either through treaties made by the President and Senate, or through statutes enacted by Congress, upon whom the Constitution has conferred power to regulate commerce with foreign nations, including the entrance of ships, the importation of goods and the bringing of persons into the ports of the United States; to establish a uniform rule of naturalization; to declare war, and to provide and maintain armies and navies; and to make all laws which may be necessary and proper for carrying into effect these powers and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof. Constitution, art. 1, sec. 8; Head Money Cases, 112 U.S. 580; Chae Chan Ping v. United States, 130 U.S. 581, 604-609.
Exclusion and Expulsion of Aliens in the United States (1912) pp. 51-55.
D. Regulation of Immigration by Legislative Enactment.1. The Immigration Acts.
(A.) The Alien Act of 1798.94
The first act passed by the Congress of the United States authorizing the deportation of undesirable aliens from this country was approved June 25, 1798. “That act,” says Mr. JUSTICE FIELD,95 “vested in the President power to order all such aliens as he should adjudge dangerous to the peace and safety of the United States, or should have reasonable grounds to suspect were concerned in any treasonable or secret machinations against the government to depart out of the territory of the United States within such time as should be expressed in his order. And in case any alien when thus ordered to depart should be found at large within the United States after the term limited in the order, not having obtained a license from the President to reside therein, or having obtained such license should not have conformed thereto, he should on conviction thereon be imprisoned for a term not exceeding three years, and should never afterwards be admitted to become a citizen of the United States; with a proviso that if the alien thus ordered to depart should prove to the satisfac-
94 1 Stat. at L. 577.
95 Fong Yue Ting v. United States, 149 U. S. 698, 37 Law Ed. 905; Dissenting Opinion.
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tion of the President,96 by evidence to be taken before such person or persons as he should direct, that no injury or danger to the United States would arise from suffering him to reside therein, the President might grant a license to him to remain within the United States for such time as he should judge proper and at such place as he should designate. The act also provided that the President might require such alien to enter into a bond to the United States in such penal sum as he might direct, with one or more sureties to the satisfaction of the person authorized by the President to take the same, continued for his good behavior during his residence in the United States, and not to violate his license, which the President might revoke whenever he should think proper. The act also provided that it should be lawful for the President, whenever he deemed it necessary for the public safety, to order to be removed out of the territory of the United States any alien in prison in pursuance of the act, and to cause to be arrested and sent out of the United States such aliens as may have been ordered to depart, and had not obtained a license, in all cases where, in the opinion of the President, the public safety required a speedy removal.” The voluntary return of an alien thus removed or sent
96 Section 12 of the Act of May 5, 1882, provided that any Chinese person found unlawfully in the United States should be removed therefrom to the country whence he came, by direction of the President after being found not lawfully entitled to remain after a hearing by a justice, judge or commissioner. After being so found he was to be detained a reasonable time so that the President might have an opportunity to perform the duty imposed on him by the act. The order of the President might be general or special, retrospective or prospective. But the authority of the President was limited to ordering the removal; he had no power to revise the judgment of deportation. It was held that he might by a general order directed to the marshal or perhaps the collector direct that all persons thus found to be unlawfully here shall be removed, and instruct the officer to take the necessary steps incident to such removal. In re Chow Goo Pooi, 25 Fed. 77. The amending Act of July 5, 1884, merely provides that any Chinese person found unlawfully within the United States shall be caused to be removed therefrom at the cost of the United States after being adjudged to be unlawfully in the country.
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out of the country was penalized by imprisonment of such duration as the President might deem required by the interests of the public safety, provided such return had been without permission granted by the President. Section 5 of the act provided that every alien thus removed might take with him such part of his goods and chattels and other property as he might find convenient, and that all property left by him in the United States should remain subject to his order and disposal. This provision is of peculiar interest because it is the only one of its kind in the long list of exclusion and immigration acts the first of which was to be enacted by Congress eighty-four years later.
Jefferson, Madison and other jurists and statesmen of recognized ability denounced the act, not only as being unconstitutional, but as opposed to recognized precepts of international law adopted and cherished by civilized nations. It was characterized as a war measure by John Adams, at that time President of the United States, who opposed the bill and against whom the responsibility for its passage was charged;97 The voluntary return of an alien thus removed or sent and the general assembly of Virginia “declared that it exercised a power nowhere delegated to the Federal Government.”98 “The duration of the act,” continues Mr. JUSTICE FIELD, “was limited to two years, and it has ever since been the subject of universal condemnation.”99 He cites Elliott’s Debates, to the effect that the distinction between alien enemies and alien friends is a clear and conclusive answer to the contention, that by the law of nations, aliens may be removed at discretion for offences against that law, that Congress is authorized to define and punish such offences, and that to be dangerous to the peace of society is, in aliens, one of those offenses; and that alien friends, except in the
97 Vol. 9 of his works, p. 291; Fong Yue Ting v. United States, 149 U.S. 698, 747, 37 Law Ed. 905.
98 Fong Yue Ting, Ibid, p. 748; Elliott’s Debates, 528.
99 Fong Yue Ting, Ibid, p. 750.
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law, and must be tried and punished according to that law only.
However meritorious or well chosen these arguments may have been in their application to the Alien Act of 1798, they have not stood the test of judicial analysis brought to bear in the consideration of the validity and effect of the Chinese exclusion and immigration acts. The validity of the distinction between alien friends and alien enemies, with regard to whether or not they are subject to expulsion or exclusion by the state in which they have acquired a domicile was denied in the very case under discussion.100 The court, speaking through Mr. JUSTICE GRAY, asserted the inherent and inalienable right of every sovereign and independent nation to exclude or expel all aliens, or any class of aliens, absolutely, or upon certain conditions, in war or in peace, and described this right as one essential to the safety, independence, and welfare of the country exercising it. To the suggestion that nowhere were such powers delegated to Congress by the states it may be replied that the states, by the very act of uniting and thus creating a national community and adding a new member to the family of nations, brought into being a political entity the attributes of which were henceforth to be determined, in an international sense at least, in accordance with the principles of the law of nations. For the rest, the question of whether the Alien Act was constitutional or the reverse is of little profit in connection with the present subject. “It is enough to say,” remarks the Court in the Chinese Exclusion Case,1 that it is entirely different from the act before us (the Exclusion Act of 1882), and the validity of its provisions was never brought to the test of judicial decision in the courts of the United States.” And in a much later case it was said: “Reference was made by counsel to the Alien Law of June 25,
100 Fong Yue Ting, Ibid, p. 711.
101 Chae Chan Ping v. United States, 130 U. S. 610, 32 Law Ed. 1077.
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1789, but we do not think that the controversy over that law (and the sedition law) and the opinions expressed at the time against its authority have any bearing upon this case, which involves an act2 couched in entirely different terms, and embracing an entirely different purpose.”3
2 Immigration Act of March 3, 1903.
3 Turner v. Williams, 194 U. S. 279, 49 Law Ed. 979.
Johnson v. Eisentrager, 339 U.S. 763, 775 (1950)
The resident enemy alien is constitutionally subject to summary arrest, internment and deportation whenever a "declared war" exists. Courts will entertain his plea for freedom from Executive custody only to ascertain the existence of a state of war and whether he is an alien enemy and so subject to the Alien Enemy Act. Once these jurisdictional elements have been determined, courts will not inquire into any other issue as to his internment.
Woodpusher and ultrasonic007, please read this, carefully. Think about what you said. Your premises are false. This IS war, meant not to look like one so as to perpetuate it. Trump's response does meet the standards of this Statute.Got it now?
I am not informed of law by a partisan political hack writing an opinion piece. I am informed by actual laws, legal texts, and appellate court opinions.
The claims in the artice were demolished by Circuit Court Henderson the day before this political nonsense was published. I gave you extensive quotes from Judge Henderson and Judge Millett. I did that on the day before this political claptrap was published.
https://freerepublic.com/focus/news/4306311/posts?page=310#310
https://freerepublic.com/focus/news/4306311/posts?page=311#311
You can always try reading the court opinions.
This is cross-thread spam.
Please remove me from your spam list.
For what it's worth, you were originally pinged to this thread by Carry_Okie in reply 14, who explicitly brought up the discussion in the other thread with the idea that this thread's American Greatness article apparently refuted mine and woodpusher's arguments. (Quote by Carry_Okie: "Think about what you said. Your premises are false.")
Notwithstanding that my response in reply #45 approached from a different tangent, woodpusher simply pointed out that—at least from the legal standpoint—the citations he had provided from the Circuit Court's ruling had already undercut the arguments in Bart Marcois's article before it got posted here (which is trivially true; woodpusher posted excerpts from Judges Henderson and Millets' opinions on March the 26th, while this article was published on March the 27th).
That you may not want to be pinged with legal citations is one thing, but I find it strange that you blame woodpusher for posting "cross-thread spam" when Carry_Okie was the one who intentionally invoked our discussions on the other thread to begin with.
You are on there because Carry-Okie put you on the address line in #14 to me. Take your grievance up with the one who put you in the address line.
As to the question respecting the writ of habeas corpus, the remarks on this point go to the detail of the bill; and are not applicable to the first section; but this regulation would by no means suspend the habeas corpus. To suspend the habeas corpus, is to commit a person to prison without law; but this bill does not propose any such thing. He took it, Congress has a right to describe certain crimes, or circumstances, which lead to the suspicion of crimes, in which case a commitment ought to take place; and Government has a right to suspend the liberty of persons in cases where they suppose there would be danger in their being at large; but the persons thus imprisoned would also have the power of demanding a trial.
It would seem that, contrary to the claims of some, the Framers of the Alien Enemies Act believed that people detained pursuant to the AEA would have the power of demanding a trial to determine if they were, indeed, subject to being detained pursuant to the Act.
“You are on there because Carry-Okie put you on the address line in #14 to me. Take your grievance up with the one who put you in the address line.”
The assumption that I wish to continue discussing this on a new thread is a reasonable and honest mistake.
However, now I’m asking you to discontinue pinging me on this.
When the conversation became less than civil on the previous thread I decided continuing the conversation would prove that I did not value my time at all. Nothing personal. No hard feelings. Not blaming anyone. I just have too many other things that occupy my time to go down that path.
And I thank you all for your prior insights and contributions to an important discussion. Perhaps I’ll have more time to engage more on the topic in the future.
How in the world is advocating for "presumption of innocence until proven guilty beyond a reasonable doubt" acting more like a lawyer than an American?
Because it is stretching the law to confer rights to foreign nationals as if they were American citizens. The Constitution doesn't say "We the people of the World..." Therefore, with regard to aliens within American jurisdiction, the Constitutional compulsion to apply the Fifth Amendment isn't there, nor is there treaty law to specify as much. It had to be invented by SCOTUS, and I'm not buying it BECAUSE it characteristically ignores the Preamble as having legal effect.
Unless those presumptions apply only to Americans, they can be applied virtually without limit as we have seen. Effectively, it allows the law to be stretched by set intersections, ad nauseum, something leftist politicians (i.e., "lawyers") judges do all the time in pursuit of ideological gain. An illegal alien is within US jurisdiction, but is not subject to it, nor does treaty law apply unless there has been an asylum claim. That person is, by statute, a criminal, continuously in the process of committing a crime. In that respect it doesn't matter if that person is in the process of leaping the fence or a thousand miles inland.
Which the Proclamation does not do. It accuses a non-state actor of engaging in irregular warfare, which has a specific meaning in American military doctrine: "a form of warfare where states and non-state actors campaign to assure or coerce states or other groups through indirect, non-attributable, or asymmetric activities, either as the primary approach or in concert with conventional warfare."
I had not read the Proclamation and have no clue about military doctrine (which I would think the CIC could ignore unless it was Statutory). I would have preferred the Proclamation declare what Venezuela did an act of war and stop there, citing the War Powers Act for authority to respond, just as a US ship can return fire on the Houthis, deliberately leaving things as ambiguous as necessary. What Venezuela did was clearly intended and evidently has done harm to this country but obviously was short of overt military action. IMO, that's all the President needs to take action to defend this country within the limits of the Act, and what he did was clearly defensive in nature and not militarily aggressive toward Venezuela, although there are time limits to it.
Trump does have a businessman's "get it done now" mentality that has run afoul of the nits of judicial detritus. The problem with the latter is that it has ignored habitually its Constitutional raison d'etre. That's why the Preamble is important and needs to take again its preeminence in Law. Without it, the legal system runs afoul of its particulars in blatant disregard of its purposes.
The two obviously pertinent written statements in that regard are in the Declaration and the Preamble, the latter of which is the founding statement of the Supreme Law. Funny, those are the parts that the People revere whilst the lawyers and the courts ignore them. They like to tweak the specifics while ignoring their context.
Without the Preamble, the Constitution would have no legitimacy, as it is what clearly lays out the social contract that legally binds persons defined as “We the People of the United States,” into a functional nation, as determined by whether or not the government actually serves its purposes for existence. In return, the people are to accept those laws while the government would remain within its legally defined limits, which obviously never happened. Else, the Declaration makes clear that the people retain the right to abolish that government.
Too bad they didn’t write that into the Constitution, along with a few other glaring “errors,” the worst of which were Hamilton’s doing, and for very specific reasons: He was the banker. We were broke after the Revolution. We needed a navy to survive. Navies aren’t cheap. The creditors had terms. That is perhaps the single most important reason the Constitutional Convention was assembled. That is why nobody at the Convention argued those terms, although Patrick Henry had a cow about some of them at the Virginia Ratifying Convention (he had been notably absent in Philadelphia). Sadly, he was right, particularly about treaties and the structural lack of accountability among the government’s officers for failure to uphold the social contract:
As stated in the Preamble.
In any body of law, from the time of the Hebrew Torah, founding statements are regarded as preeminent, upon which the body of statutes is to be built. That is because, particularly in the case of the Constitution, there is overlap among competing considerations. That is why we have the SCOTUS to settle and describe the operational boundaries among competing claims and risks both vertically (individuals and governments) and horizontally (e.g., between States or individuals). Problems arise where those principles conflict and when the consequent decisions ignore those essential principles when weighing competing considerations.
So let’s take a quick look at those central principals:
We have in this country some 40 million illegal aliens, give or take. To process them, we have some 700 immigration judges. The current rate of case processing is 825,000 cases per year, fewer than 1,200 cases per judge per year that are so pointless the vast majority of defendants don’t even bother to show up. So much for respect for “the rule of law.” At that rate sirs, “due process,” never mind justice, is hardly anything more than pro forma perfunctory anyway, rendering your legal preferences of dubious service.
But it gets worse. Let us assume that the government, in its zeal to accomplish what you seem to regard as a minimum standard of “due process,” doubles the number of said immigration judges. That would mean each judge would have some 28,500 cases to decide within the time of what one could legitimately call “speedy.” That’s still a lot more than 1,200 cases per judge, isn’t it? By the numbers, for a Trump Administration to clear the backlog of all illegals in-country now, that goal would take increasing the number of judges and lawyers by twenty times.
That’s not possible. The necessary personnel do not exist and nobody of any capability would take a high-pressure short term job like that. So nice of you to advocate for the impossible. But that gets to another question: Is it just? I suspect you already know that answer.
So besides the fact that waiting years for a trial is hardly “speedy,” what about justice to the American people into whose pockets you would reach to pay for this impossible vision of “due process”? What about the crimes visited upon the people, the costs for welfare, education, medical, and social services placed upon the people at large with taxes taken by force and interest to be paid until all these cases can be adjudicated and those illegals deported? How about the legal overhead for crimes illegals commit? So much for justice, union, or tranquility. You would consign the people to suffer from the consequences of what ends up as little more than legal virtue-signaling.
What about those documented terrorists among all those illegals? Did dragging our feet ridding the country of illegals result in superior National Defense? It only took 19 people to take down the World Trade Center and put a hole in the Pentagon. You do remember that all were foreign nationals and a majority were illegals, don’t you? How much did that cost? Was the failure to process those illegal aliens just? Did that result in domestic tranquility? How about those blessings of liberty post enactment of the USA-PATRIOT Act? Have you been frisked at an airport lately?
How about the way the Slave Party uses illegals as stand-ins for legitimate voters? It worked in Maricopa County, LA, Vegas, Atlanta, Detroit… where those mules handed in mail-in ballots supposedly representing legitimate voters. How much more debt do we face as a result of Biden’s “victory”? How about that pending WWIII? How about an Iran on the cusp of delivering an EMP weapon?
Defense? Please.
And just what would be your envisioned application of “due process” and does it in any way deliver superior Justice to entrants to a statistically measurable degree? The only determinations need be made are whether or not they are citizens and whether or not they have a valid “asylum” claim. Please. The former is easy. To the latter, they can file that claim from El Salvador.
So what is so undue about simply deporting them all and processing any reasonable claims from there? Is it really that hard to figure out they don’t mean well if they have MS-13 tats all over them that we need two lawyers, a judge, an air-conditioned room, bailiffs, holding cells, guards, a laundry for their jumpsuits, cooks, clerks, kitchens, refrigerators, food trucks, IT people, more guards…? Because that’s your “legal” world, and you clearly don’t give a rip about what it does to everybody who pays for it. By its results, the “immigration court” system has already failed for the very reasons cited.
You will recall my example previously of a police officer being shot at while confronting a crime in progress having every right to KILL that perp as a matter of proceeding under specific rules of engagement set by lawyers every bit as careful as you, and with gobs of case law dealing with those particulars. It is not a violation of “due process” for that officer to kill said perpetrator BECAUSE OF THE EXIGENCIES OF THE CIRCUMSTANCES. Not only that, but if the system errs it is often on the side of the defendant (ask Derek Chauvin). Circumstances do matter re due process. We don’t need a judge, two attorneys, a fully staffed courtroom, a full discovery process, and a subsequent ruling in writing in order for the officer being shot at to effect deadly force. Circumstances dictate. That’s a law of Nature if you didn’t know.
Similarly, if an illegal alien is caught in the act of hopping a border fence, ICE is entirely within the scope of a similar application of due process to effect an arrest, as said jumpers made no effort to present themselves at an appropriate crossing to a border agent for evaluation of an asylum claim. But wait!!! Isn’t an arrest a ‘deprivation of liberty’ without due process? Where was the judge, the air conditioned court room, and the discovery process blessing that?
There isn’t one required, is there? Because it’s absurd. Oh, but if those illegals make it over the fence, MAGIC happens. Out come the law books because this is a “person,” now, citing the Fifth Amendment whilst forgetting the Preamble for its existence, then to be released upon their own cognizance with a note to appear EVERYBODY knows they won’t obey. Clearly they weren’t persons before climbing the fence, or were they?
This is why we remember the Preamble, so that habitual elements of procedure don’t trump their objectives. You contend that there were no concerns about such legal rigidity among the Founders, that the writ of habeas corpus would be inviolable with regard to aliens:
I can just hear it: ‘We do these things so that such injustices don’t become so legally habitual that they are used against innocent Americans!’ Such altruism! First, we have a little wall to surmount there: citizenship is a pretty hard distinction. But second, one must ask, ‘Just whose interests does a system like this really serve?’ And we all know that would be the legal and law enforcement professions. Oh but there’s no agenda there! Is there?
We heard all sorts of assurances to the contrary from the likes of Hamilton in Federalist 35:
You’ll note that he lumped lawyers in with “the learned professions” to keep it from being too obvious.
Will not the man of the learned profession, who will feel a neutrality to the rivalships between the different branches of industry, be likely to prove an impartial arbiter between them, ready to promote either, so far as it shall appear to him conducive to the general interests of the society?
Does anyone here believe any of that crap? It’s typical Hamilton too. Fifty-seven Senators are lawyers as are 168 in the House. Someone should tell the ABA that the adversary system works against professional neutrality when lawyers are promoted to be impartial arbiters (somebody tell Judge Boasberg that his foundational reason is that ships aren't cheap).
Interestingly, some of the Founders objected to this line of BS, thus forcing Madison to offer the original 13th Amendment in the Articles that became the Bill of Rights. This one is dubbed “TONAH,” after “Titles of Nobility and Honor.”
Accordingly in his zeal for precedent without regard for their purposes, woodpusher leaps to cite two Democrat judges on the DC Circuit, one anointed by Zero and the other Brandon and expects us to bow to their authority as if they are impartial arbiters! Complete with pompous condescension. here and here
I don’t give a rip about your legalisms, because they are illegitimate.
We received warnings during the Federal Convention:
This is why I prefer more emphasis upon res judicia in competing jurisdictions and circuits to stare decisis generating national orders from any Federill judge, you know, “Federalism.” That helps the people identify who the tyrants really are. By the former, we get to see the results of decisions made in a legal bubble which can be popped if it gets too radical. Reversing field is easier that way. By the latter, we keep forgetting all about the raison d’etre for the entire system as (you would apparently wish) by which the damage of chaotic rulings is obvious.
Now this is not in my interest, as I live in California, which would then be allowed to leap even farther off the deep end. But I am perfectly satisfied with the ruin of the San Francisco of my childhood (well, not entirely), as it exemplifies the consequences of democratic socialism as imposed by the whims of legalism.
Hopefully, simple cases like these will be decided by AI.
Well said. Too many can’t see the forest for the trees.
We certainly have a problem with our legal profession.
And I did not know about the 13th amendment. Pretty mind-blowing.
I like to say that, "We used to have a conscience on our shoulder, but now it's a lawyer." It is actually a terrible psychological load, from warnings on plastic bags to disclaimers in advertising, to subtle changes in sports logos... such legalisms are EVERYWHERE. When someone asks me to sign and initial terms of contracts asking if I read and understood something, I like to add, "...and all the case law therewith." All this stuff accomplishes is to protect bad actors with the cost of getting past these formalisms.
And I did not know about the 13th amendment. Pretty mind-blowing.
I first ran across Barefoot's World back in the late 1990s. His loss was ours. If you haven't read it, this piece should demonstrate clearly the perfidious behavior upon the part of the banking and legal classes operating via the coercive power of debt relief that has been with us since the Founding. Everybody talks about how bad a deficit is, but nobody mentions how and why it works the way it does. That deficit in public education needs to be fixed.
I had the great advantage in my education at Harvey Mudd College, having a directed reading under Dr. William Barclay Allen. He had me read Farrand's Records of the Federal Convention and selected readings of the philosophers popular with particular Founders involved in the debate. Those readings and the discussions they prompted gave me the intellectual license to think outside the Constitutional box with which to deliver upon its promises. The document does have its critical defects even Levin hasn't recognized (as you will see in the article linked above).
I’ve been aware for many years that treaties have been used as an end run around the Constitution, but I didn’t know how bad it was or how far back it went.
A major flaw in our Constitution-centered legal system is that flawed people interpret our laws and run that system. Obama called the Constitution “fundamentally flawed” but I think what he really had a problem with was it getting in the way of the left’s unchecked power.
The treaty power wasn't a flaw; it was a feature from the get go, clearly a reassurance to the investors who funded our ability to protect maritime trade that the United States could keep its promises. Before the Constitution, with States issuing currency, potential bond buyers were skeptical of American debt payments (hence the provisions for silver and gold backing the American dollar). Meanwhile, Muslim raids of American ships were expensive (we had lost 11 in one year). Had Britain not been occupied with Napoleon, things might have turned very badly. The Naval Act of 1794 didn't come cheap and had been debated in Congress since before the Federal Constitutional Convention.
Few consider the impact of financing Federal debt in their recounts of American history, but nothing happens without the money to do it.
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