The U.S. Supreme Court just ruled that President Trump’s responsibility to American citizens and national security, must be directly frustrated.
Acting under the Alien Enemies Act, President Trump accurately characterized Venezuelan gang members as not only aliens and enemies, but as criminals posing danger to the country. The Court apparently believes otherwise, and a majority ruled to pause deportation subject to a purported right of due process that they invented out of constitutional thin air.
As usual, two justices alone understand the law, and dissented: Justices Samuel Alito and Clarence Thomas.
But what is fascinating is that they appear the only functional legal experts on the nine-person court.
The rest seem to prioritize politics.
Perhaps that is unfair, but if you look at the track record of key legal decisions over fundamental constitutional interpretation, Alito and Thomas stand out as the only reliable, mature thinkers who can reason with the Constitution in front of them.
In the past, other administrations sought to “pack” the court with more appointees who could be counted on to toe the line as a unified bloc for partisan objectives.
It was a way of converting the Supreme Court into an effective legislature, which it never can be, of course, but also as a way to illegally frustrate a functional government by blocking or slowing down actual democratic processes of representation and consent.
But why add more judges to the Court if you can simply “hive off” and count on, a simple majority that consistently acts the way you want?
President Trump is doing his job as president, rightly interpreting the law, and upholding the Constitution.
The Chief Justice, and a cooperating wing, are apparently willing to frustrate executive responsibility, and prioritize illegal alien criminals over U.S. citizens, freely taking numerous “legal shortcuts.”
The Venezuelans and other invaders are not U.S. citizens, they are not “Persons” in the Constitution, and they are not granted any due process, except immediate deportation which is far more generous treatment than they would get in most other countries: in some, which the progressive left admires, their acts could rise to capital punishment.
This brings up a crucial point in comparative constitutional law: the concept of comity.
You don’t hear it discussed much, but it’s central to the underlying nature of the entire illegal immigrant invasion program that clearly involved organized human extraction and the “herding” of millions of unknown parties illegally into our country. The concept of “comity” asks how other countries could allow this to happen: how did potentially dozens of other sovereign countries, each with their own constitutions, happen to treat our Constitution with complete disregard, deliberately undermining it, and international law?
The doctrine of international comity refers to standards of public international law, and reciprocity.
Deporting illegal gang members not only honors that doctrine, but asks their countries of origin to do the same by facilitating their return.
The recent majority Supreme Court decision not only got our own Constitution wrong, but got everyone else’s wrong as well. It doesn’t reflect a full consideration of comparative and international law, which is relevant for the case before them. Given the limited way we train our lawyers and judges, that is not unexpected. But it’s a liability: our courts can work in ways that are against both domestic rules of law, and international order, by destabilizing both, through legal incompetence.
But this is where it gets interesting, because it reinforces the legal authority of President Trump’s position on illegal aliens:
The Comity Clause references Privileges and Immunities in Article Four of the Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Note it says “Citizens.” Article Four also includes the interstate Extradition Clause.
Since illegals have no U.S. citizenship or U.S. constitutional personhood, they do not quality for U.S. interstate rendition or due process. The only relevant legal action is international extradition to the one state that controls for their status: the foreign country of origin from where they are fugitives.
In the alternative, illegals could be jailed, and under the Thirteenth Amendment, thereby converted to slavery status as punishment.
That would be the only path to theoretically invoking the Fourteenth Amendment, for release from obligation. But since illegals do not qualify for U.S. criminal due process, the U.S. Patriot Act provides government authority to detain a non-citizen indefinitely without criminal charge. If the Supreme Court followed the law, it would stand down and recognize that it has no relevant jurisdiction. The Executive Office does.
Illegals have a choice: be subject to our Constitution if they insist, be jailed under expedited special proceeding, and by the Thirteenth Amendment, put in servitude as punishment; or be put under indefinite detention by the Patriot Act under national security; or, be extradited as fugitives from foreign states; or, be graciously deported for illegal entry, under an international comity standard.
In economics, these are called tradeoffs.
In the Constitution, it’s called the law of the land. For judges who can’t follow it, they may face impeachment. As the current “packed wing” of the SCOTUS seems determined to protect and harbor foreign criminals, they could then be subject to the Patriot Act which charges the Justice Department with preventing terror acts, including those potentially facilitating it.
Illegal criminal aliens can be characterized under domestic terror standards, and must be deported. Supreme Court justices that protect them may face impeachment, loose immunity, and risk liability.
Matthew G. Andersson is the author of the upcoming book “Legally Blind” concerning ideology in law. He has testified before the U.S. Senate, and is a graduate of the University of Chicago Booth School of Business, and the University of Texas at Austin where he worked with economist and White House national security advisor W.W. Rostow.
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