Donald Trump and his administration wants to kick people out of the country that they don’t like, whether that’s legal or not. They’ve tried using the ancient Alien Enemies Act from 1798 and the Immigration and Naturalization Act of 1952 and now the Alien Terrorist Removal Court, created in 1996 and never used even once in its 30 years of existence.
Prosecuting or deporting real terrorists and real criminals should happen, but Trump is misusing these laws to pursue people based on whatever suits his whims.
Last week, the Justice Department filed a case before the Alien Terrorist Removal Court, a specialized court made of five federal judges who can weigh cases against alleged foreign terrorists as identified by DOJ.
Who is being accused and what are they being accused of? We have no idea, because the proceedings so far are sealed. All we know is that the court’s chief judge, Joan Ericksen, has implored the administration to be more “thoughtful” in its filings, a diplomatic way of pointing out that it is once more casting about to find some sort of flimsy legal pretext to do something it had already resolved to do. She ordered DOJ to supply more details by today.
The reason that this court has stayed dormant for the last 30 years is because even at the time of its creation, it was clear that it raised acute constitutional questions. You don’t have to be a historian to know that the Constitution and Bill of Rights were direct repudiations of Star Chamber courts with secret evidence the accused was not allowed to see or respond to before consequences were doled out.
George W. Bush was in office for eight years with 9/11 going on, Afghanistan, Iraq, the shoe bomber and more and he never tried to use this court. Just like the earlier efforts, Trump’s guys are looking for anything to use for deportations.
In any case, we already know how this administration defines “terrorist”: activists taking First Amendment-protected stances, longtime immigrants without so much as a parking ticket, whom they need to retroactively paint as scary to justify summary detentions or killings, and even elected and appointed officials who challenge their encroaching authoritarianism. It is a well-trod playbook to strip people of due process by calling them terrorists or national security threats.
As with many of the administration’s clumsy power grabs, it is unlikely to really work given that the courts have remained a relative check on Trump’s despotism even as Congress has more or less relinquished its responsibility to the Constitution and its own authority. Even as the U.S. Supreme Court has made it a point to give Trump most of what he wants, at least a majority of the justices still seem to have constitutional lines they won’t cross.
Whether or not this actually becomes a real threat to immigrants in this country, the fact is that it is one more signal that the administration will use every possible tool it can to make itself hostile to immigration of all forms, a reality that is already having disastrous social and economic consequences around the country even as it also tests the boundaries of our constitutional order. This case should fail, but it must be Congress to take some of these tools away.