Setting the record straight on the 1798 statute former President Trump claims he'll use to summarily arrest and deport undocumented immigrants—and the Supreme Court's handful of interactions with it
Your column is very interesting, as usual, but I think you got the definitions of issei and nisei backwards. Issei are first-generation Japanese nationals who came to the U.S., while nisei are the second generation who were born as U.S. citizens.
I am way more pessimistic about the courts’ deference to (Republican) presidential authority. Having deferred once to a president’s power to define when a war ended, why wouldn’t SCOTUS, particularly this SCOTUS, defer on the incursion/invasion language? The real question to me is whether invoking this particular act gives a president broader enforcement latitude than the existing laws/regulations, how it interacts with other statutes on the books, what it means for documented immigrants who are not yet nationalized and what it portends for US citizens assisting them (do they become liable for treason?).
Isn't the "invasion or predatory incursion” bit going to run into difficulties with what we hear is the MOST common category of undocumented immigrant: the ones who entered legally, usually with visas, and just stayed. If the US treats tourists as "invaders" or "predatory" there is an industry about to get slammed into extinction.
Im probably not fully understanding this, but can anyone help clarify this distinction for me?
“the statute the Supreme Court upheld in Korematsu merely made it a crime to violate an exclusion order; it didn’t affirmatively authorize the exclusion.”
Interesting, I definitely need to read Ex Parte Endo but I’m pretty confused why the same Court that says the exclusion orders are constitutional and can’t be violated (in Korematsu) would say the very opposite (in Endo) just because the plaintiffs complied with the order in 1 case but not the other
Fred Korematsu was arrested because he did not report as purportedly ordered. Years later on 11/10/83 with extended family members present in court, Korematsu vs U.S. was overturned, by Presiding Judge Marilyn Patel in the Northern District of California on a Writ.
Oh interesting, can a lower court overturn a Supreme Court case like that? I thought there was some (very disingenuous) language in Trump v Hawaii where the Court officially overturned Korematsu
Maybe somebody should help Trump with some simple math. That statute is from 1798. Our Constitution was written in 1787 and ratified in 1789. In 1798 the statute targeted "predatory incursion" or "invasion." In 1798, our Constitution expressly protected "Migration" of "Persons." It expressly emphasized that such "Migration" of "such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight." Clearly, "predatory incursion" or "invasion" did not encompass "Migration." During that period, massive numbers of people who were not citizens already were in many states and many more being allowed (or brought) into many states. And (in 1798) the Constitution prohibited the federal government from doing anything to stop or even stem such "Migration" for another 10 years in a manner contrary to what "any of the States" might "think proper." Multiple states that benefitted from that clause of the Constitution in 1798 were on the opposite side of the federal government in 1798, including Virginia (dominated by the virulently anti-Federalist, pro-French Republicans led by Jefferson).
The conduct of the SCOTUS justices in Ludecke (allowing detention of people despite the absence of any nexus with either necessity or defense) reminds me of the willful blindness inherent in the tyranny of today's majority (of SCOTUS) with respect to self-defense and self-preservation. The text and purpose of the Second Amendment (and precedent thereunder) are relevant to both situations.
The Second Amendment emphasized conduct that was "necessary to the security of a free State." But I agree with SCOTUS in Heller and Bruen that the Second Amendment is about something far different from what the text of the amendment reveals (except for the words "right of the people" to do what is "necessary" for their "security"). It obviously is not limited to any "right" to merely "keep" or merely "bear" any kind of "arms" or about mere "arms," in general. It obviously is about something both far more capacious and far more constrained than "arms."
The same six justices responsible for Dobbs were responsible for N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). SCOTUS published Bruen one day before Dobbs. In Bruen, the Dobbs justices invoked District of Columbia v. Heller, 554 U.S. 570 (2008):
In [Heller] the Court [acknowledged] that the Second Amendment [really] protects the right to [ ] self-defense. [Clearly, the Second] Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “‘the natural right of [ ] self-preservation.’” [ ] “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”
Heller, in fact, was far more emphatic and well-supported. “By the time of the founding, the right” of self-preservation was “fundamental for English subjects.” “Blackstone” (whose works, SCOTUS has said, “constituted the preeminent authority on English law for the founding generation”) in 1765 cited the relevant “provision of the [English] Bill of Rights [of 1689] as one of the fundamental rights of Englishmen.” Blackstone’s “description” emphasized “the natural right” of “self-preservation” and “the right” of “self-preservation and defence.” Moreover, “the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear” in 1803 that “Americans understood” the “right of self-preservation.”
In their own “review of founding-era sources,” the Heller majority found “nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens” to use deadly force against other actual people “in defense of themselves” or “in defense of himself.”
“Justice James Wilson” similarly “interpreted the Pennsylvania Constitution’s” relevant “right” as “a recognition of the natural right of defense” of “one’s person or house” which “he called the law of “self preservation.” Wilson explained this “constitutional right” was “one of our many renewals of the Saxon regulations.”
Anyone sincerely and seriously supporting our Constitution would compare Dobbs with Bruen, Heller and the Preamble (the Constitution’s first, most fundamental and most important text) and recognize the right of women to self-defense and self-preservation. Heller and Bruen necessarily did recognize the right of women to self-defense and self-preservation, even if they needed to terminate the life or lives of one or more actual persons.
Heller and Bruen (and the authorities they invoked) and the Preamble (especially when viewed in light of the First, Second, Fourth, Ninth, Tenth, Fourteenth, Fifteenth and Nineteenth Amendments) extremely strongly and extremely clearly confirmed a woman’s constitutional right to defend or protect herself, even if she must terminate her own pregnancy to do so. They extremely strongly and extremely clearly confirmed that the people did not (in any federal or state constitution) delegate to public servants any power to deprive of us such liberty.
Trump certainly did not come up with the reference to the Alien Enemy Act on his own. Have to think someone (Stephen Miller?) posits that it would be a way around the provisions of the Immigration and Nationality Act which would provide for hearings before Immigration Judges for the large majority of non-US nationals who are present in the US without lawful status. Such individuals would then have the ability to appeal an unfavorable order to the Board of Immigration Appeals and then seek judicial review in one of the circuit courts of appeal. Haven't worked my way through your article so missed the explicit provision for judicial review under the Alien Enemy Act. Even without an explicit provision, would think review in habeas would be available.
SCOTUS's approach in Ludecke seems clearly unconstitutional (and dangerous and just plain lazy). It elevated form far over function. Worse, it elevated a mere statement about the end of a conflict over the text and purpose of a federal statute and even the text and purpose of the Constitution.
The text of the statute made clear that presidential action must be "necessary in the premises and for the public safety." By the terms of the statute, courts could not lawfully merely rely on the absence of some formal statement declaring the end of a conflict. The Constitution emphasized the same.
Article I emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). As was emphasized by many Federalist and Antifederalist statements during the ratification debates, "necessary and proper" limited all federal powers. The Preamble highlighted that such detention had to be proved necessary "for the common defence." It's impossible to prove that detaining anyone at issue under the circumstances of that case could be necessary for national defense.
The conduct of SCOTUS justices in Ludecke reminds me of the misconduct of the majority in Trump v. United States (and in Alexander v. S.C. State Conf. of the NAACP). All three remind me of crucial warnings in The Federalist No. 78. Alexander Hamilton (quoting Montesquieu) emphasized, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Although “liberty can have nothing to fear from the judiciary alone,” it “would have every thing to fear from its union with either of the other departments.” The Ludecke, Trump and Alexander decisions are evidence of such dangerous unions.
Unconstitutional, dangerous, and lazy, yes. Also frustratingly consistent with the Court's usual approach to disputes over citizenship, going back at least to the Insular Cases and arguably all the way to Dred Scott. Wong Kim Ark is an important exception to that record, and I would not be surprised to see at least four votes from the current Court to abandon that precedent. If they even noticed as they trampled it.
Do you plan to write anything about Lackey v Stinnie? I thought that was a very interesting case but it got crowded out by the bigger cases argued last week
Japanese immigrants are issei (is- abbreviation of ishi, 1, -sei generation); their second-generation US citizen children are nisei (ni-, 2).
Yes--that was a typo that I've fixed above. Thanks!
Your column is very interesting, as usual, but I think you got the definitions of issei and nisei backwards. Issei are first-generation Japanese nationals who came to the U.S., while nisei are the second generation who were born as U.S. citizens.
Yes--that was a typo that I've fixed above. Thanks!
I am way more pessimistic about the courts’ deference to (Republican) presidential authority. Having deferred once to a president’s power to define when a war ended, why wouldn’t SCOTUS, particularly this SCOTUS, defer on the incursion/invasion language? The real question to me is whether invoking this particular act gives a president broader enforcement latitude than the existing laws/regulations, how it interacts with other statutes on the books, what it means for documented immigrants who are not yet nationalized and what it portends for US citizens assisting them (do they become liable for treason?).
Thank you for this article, Steve.
Isn't the "invasion or predatory incursion” bit going to run into difficulties with what we hear is the MOST common category of undocumented immigrant: the ones who entered legally, usually with visas, and just stayed. If the US treats tourists as "invaders" or "predatory" there is an industry about to get slammed into extinction.
Im probably not fully understanding this, but can anyone help clarify this distinction for me?
“the statute the Supreme Court upheld in Korematsu merely made it a crime to violate an exclusion order; it didn’t affirmatively authorize the exclusion.”
Aren’t these 2 things effectively the same?
Not really; folks who complied with the exclusion and *then* challenged their detention on the ground that it was unlawful eventually won.
Interesting, I definitely need to read Ex Parte Endo but I’m pretty confused why the same Court that says the exclusion orders are constitutional and can’t be violated (in Korematsu) would say the very opposite (in Endo) just because the plaintiffs complied with the order in 1 case but not the other
Fred Korematsu was arrested because he did not report as purportedly ordered. Years later on 11/10/83 with extended family members present in court, Korematsu vs U.S. was overturned, by Presiding Judge Marilyn Patel in the Northern District of California on a Writ.
Oh interesting, can a lower court overturn a Supreme Court case like that? I thought there was some (very disingenuous) language in Trump v Hawaii where the Court officially overturned Korematsu
Maybe somebody should help Trump with some simple math. That statute is from 1798. Our Constitution was written in 1787 and ratified in 1789. In 1798 the statute targeted "predatory incursion" or "invasion." In 1798, our Constitution expressly protected "Migration" of "Persons." It expressly emphasized that such "Migration" of "such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight." Clearly, "predatory incursion" or "invasion" did not encompass "Migration." During that period, massive numbers of people who were not citizens already were in many states and many more being allowed (or brought) into many states. And (in 1798) the Constitution prohibited the federal government from doing anything to stop or even stem such "Migration" for another 10 years in a manner contrary to what "any of the States" might "think proper." Multiple states that benefitted from that clause of the Constitution in 1798 were on the opposite side of the federal government in 1798, including Virginia (dominated by the virulently anti-Federalist, pro-French Republicans led by Jefferson).
The conduct of the SCOTUS justices in Ludecke (allowing detention of people despite the absence of any nexus with either necessity or defense) reminds me of the willful blindness inherent in the tyranny of today's majority (of SCOTUS) with respect to self-defense and self-preservation. The text and purpose of the Second Amendment (and precedent thereunder) are relevant to both situations.
The Second Amendment emphasized conduct that was "necessary to the security of a free State." But I agree with SCOTUS in Heller and Bruen that the Second Amendment is about something far different from what the text of the amendment reveals (except for the words "right of the people" to do what is "necessary" for their "security"). It obviously is not limited to any "right" to merely "keep" or merely "bear" any kind of "arms" or about mere "arms," in general. It obviously is about something both far more capacious and far more constrained than "arms."
The same six justices responsible for Dobbs were responsible for N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). SCOTUS published Bruen one day before Dobbs. In Bruen, the Dobbs justices invoked District of Columbia v. Heller, 554 U.S. 570 (2008):
In [Heller] the Court [acknowledged] that the Second Amendment [really] protects the right to [ ] self-defense. [Clearly, the Second] Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “‘the natural right of [ ] self-preservation.’” [ ] “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”
Heller, in fact, was far more emphatic and well-supported. “By the time of the founding, the right” of self-preservation was “fundamental for English subjects.” “Blackstone” (whose works, SCOTUS has said, “constituted the preeminent authority on English law for the founding generation”) in 1765 cited the relevant “provision of the [English] Bill of Rights [of 1689] as one of the fundamental rights of Englishmen.” Blackstone’s “description” emphasized “the natural right” of “self-preservation” and “the right” of “self-preservation and defence.” Moreover, “the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear” in 1803 that “Americans understood” the “right of self-preservation.”
In their own “review of founding-era sources,” the Heller majority found “nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens” to use deadly force against other actual people “in defense of themselves” or “in defense of himself.”
“Justice James Wilson” similarly “interpreted the Pennsylvania Constitution’s” relevant “right” as “a recognition of the natural right of defense” of “one’s person or house” which “he called the law of “self preservation.” Wilson explained this “constitutional right” was “one of our many renewals of the Saxon regulations.”
Anyone sincerely and seriously supporting our Constitution would compare Dobbs with Bruen, Heller and the Preamble (the Constitution’s first, most fundamental and most important text) and recognize the right of women to self-defense and self-preservation. Heller and Bruen necessarily did recognize the right of women to self-defense and self-preservation, even if they needed to terminate the life or lives of one or more actual persons.
Heller and Bruen (and the authorities they invoked) and the Preamble (especially when viewed in light of the First, Second, Fourth, Ninth, Tenth, Fourteenth, Fifteenth and Nineteenth Amendments) extremely strongly and extremely clearly confirmed a woman’s constitutional right to defend or protect herself, even if she must terminate her own pregnancy to do so. They extremely strongly and extremely clearly confirmed that the people did not (in any federal or state constitution) delegate to public servants any power to deprive of us such liberty.
Trump certainly did not come up with the reference to the Alien Enemy Act on his own. Have to think someone (Stephen Miller?) posits that it would be a way around the provisions of the Immigration and Nationality Act which would provide for hearings before Immigration Judges for the large majority of non-US nationals who are present in the US without lawful status. Such individuals would then have the ability to appeal an unfavorable order to the Board of Immigration Appeals and then seek judicial review in one of the circuit courts of appeal. Haven't worked my way through your article so missed the explicit provision for judicial review under the Alien Enemy Act. Even without an explicit provision, would think review in habeas would be available.
SCOTUS's approach in Ludecke seems clearly unconstitutional (and dangerous and just plain lazy). It elevated form far over function. Worse, it elevated a mere statement about the end of a conflict over the text and purpose of a federal statute and even the text and purpose of the Constitution.
The text of the statute made clear that presidential action must be "necessary in the premises and for the public safety." By the terms of the statute, courts could not lawfully merely rely on the absence of some formal statement declaring the end of a conflict. The Constitution emphasized the same.
Article I emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). As was emphasized by many Federalist and Antifederalist statements during the ratification debates, "necessary and proper" limited all federal powers. The Preamble highlighted that such detention had to be proved necessary "for the common defence." It's impossible to prove that detaining anyone at issue under the circumstances of that case could be necessary for national defense.
The conduct of SCOTUS justices in Ludecke reminds me of the misconduct of the majority in Trump v. United States (and in Alexander v. S.C. State Conf. of the NAACP). All three remind me of crucial warnings in The Federalist No. 78. Alexander Hamilton (quoting Montesquieu) emphasized, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Although “liberty can have nothing to fear from the judiciary alone,” it “would have every thing to fear from its union with either of the other departments.” The Ludecke, Trump and Alexander decisions are evidence of such dangerous unions.
Unconstitutional, dangerous, and lazy, yes. Also frustratingly consistent with the Court's usual approach to disputes over citizenship, going back at least to the Insular Cases and arguably all the way to Dred Scott. Wong Kim Ark is an important exception to that record, and I would not be surprised to see at least four votes from the current Court to abandon that precedent. If they even noticed as they trampled it.
Thank you, informative as always!
Do you plan to write anything about Lackey v Stinnie? I thought that was a very interesting case but it got crowded out by the bigger cases argued last week