Lee Gelernt:
The first, and I think most important maybe, is that this wartime authority can’t be used.
Congress was very, very clear in this statute, as you said, enacted in 1798, that there must be a foreign government or nation in a declared war with the United States or a foreign government or nation must be invading the United States or there must be predatory incursions, threatened or attempted.
Nothing like that is happening. As judge Henderson and the D.C. Circuit pointed out, migration is not an invasion. This is a very dangerous path we’re going on if the government can say we’re unilaterally going to designate any gang we want during peacetime as an enemy alien and then ship people off, especially if there’s no due process.
I would just add that Congress was so specific that no other administration in the history of this country has been confused about what powers it vests the president with. It’s only been used three times in the history of the country, all during declared wars, the War of 1812, World War I and World War II.
No president has tried to take this lawless action of saying we’re going to designate a criminal gang as a foreign country invading the United States.
