Saturday, May 18, 2019

Steven I. Vladeck: "Yes, Trump Can Invoke the Insurrection Act to Deport Immigrants"

Ok...this does not sound all. To say the very least.
Read the whole thing; but excerpts below:
I agree:
One of the most interesting legal phenomena of the Trump administration has been the increased use of—and public focus on—previously obscure federal statutes that delegate surprisingly broad power to the president.
 I report:

...the latest addition to this list may soon be the Insurrection Act—which the president is planning to use “to remove illegal immigrants from the United States,” the outlet reported on Thursday. If the president does actually call out the U.S. military to help deport undocumented immigrants, that could be the most clearly lawful—and most historically indefensible—example of this phenomenon that we’ve seen to date. [My emphasis] ... 

The “Insurrection Act” is an umbrella term for a series of statutes that date all the way back to the Founding, and through which Congress has exercised its authority under Article I, Section 8, Clause 15 of the Constitution “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” ...
Numerous statutory tweaks followed, but the structural features remained the same: Under the Insurrection Act as it stands today, whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
In other words, if the president determines that ordinary law enforcement is inadequate to enforce federal law, he can deploy the military to assist. And although Congress in the Posse Comitatus Act of 1878 generally prohibited use of the federal military for domestic law enforcement, the Insurrection Act was always understood as the principal exception to that general rule. [My emphasis.]...
…It’s not just that local authorities today can handle most law-enforcement crises; it’s that calling in federal troops (as opposed to the state National Guard) had, at least until now, come to be seen as crossing a constitutional Rubicon—a measure that should be saved for truly existential crises when there is no dispute over the need for federal military intervention. [My emphasis]
Lawsuits will certainly challenge Trump’s invocation of the Insurrection Act to assist in immigration enforcement—a purpose for which it’s never previously been used. But the text of the statute would seem to be on the president’s side—underscoring just how broad the power is that Congress has delegated to the president, and just how much we have historically relied upon political checks, rather than legal constraints, to circumscribe the president’s authority. As partisan tribalism has increasingly come to mark virtually every policy debate in Washington, those political checks have proven increasingly ineffective. [My emphasis in bold]
I completely agree:
The obvious lesson that Congress ought to put less faith into these political checks, and more teeth into substantive statutory limits on the president’s authorities... But that can’t—and won’t—happen until members of this (or any) president’s own party, and not just his opponents, privilege the separation of powers over the separation of parties. [There is no emphasis strong enough to emphasize this the way it needs to be emphasized.]
Damn. Do we now have an actual Constitutional crisis looming? All the Democratic 'wolf'-crying and general hysterics have almost made me forget that we do not really know what this guy is capable of. His average has turned out to be much better than I'd ever have guessed...but it's that dispersion that scares me. Of course I've known about the Insurrection Act for about five minutes now...but this seems very alarming. Even to someone like me, who thinks that there's no getting around a lot of deportations.
   A week ago I was thinking that Trump was looking really strong for 2020. But now it looks like we've got (a) a trade war, (b) a resurgent religious right that's pushing extreme antiabortion laws and a challenge to Roe (c) strong polling numbers for a sort-of moderate Democrat (Biden), and now (d) this.
   I'm at a loss.


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