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It's been so long. How have you been? Hello. I'm doing well, Dave. Why? Why are you talking that way? Please say one for a compliment or two for a question. Yeah, this is weird. I think I'm gonna go.
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What does the Trump administration's decision to blow up a boat in the Caribbean with 11 people on it have to do with a 5th Circuit Court of Appeals decision that came out on the same day against the Trump administration? What's the link? Well, Donald Trump has declared that we're at war with Venezuela and Venezuela is at war with us, giving him the powers to use the Alien Enemies Act. I mean, what happens in war? We just blew up a boat with 11 people on it that Marco Rubio claims were members of the Trend Aragua drug cartel supported by Maduro, the dictator of Venezuela. Venezuela, well, happens to be on the same day. And I'm sure to distract attention from another losing case for Donald Trump, where the fifth Circuit Court of Appeals, which is generally conservative and leans right in a 2 to 1 vote, found that Donald Trump improperly invoked his powers under the Alien Enemies act because we are not at War with Venezuela. We are. There's not a predatory incursion going on. And this is what the United States Supreme Court wanted the Fifth Circuit to do. Because in May, they blocked the use of the Alien Enemies act to deport these people in the Northern District of Texas, sent it back to the 5th Circuit with instructions to determine whether due process was properly filed followed and whether the Alien Enemies act was properly used substantively. Well, we got the ruling in September and two to one it's against Donald Trump. An interesting two to one vote. Who's on the vote? Southwick, a Bush appointee. Carrillo Ramirez, a Biden appointee with Oldham who's trying out for the Supreme Court on the magaside in descent. It took 133 pages for these three judges to render their various opinions. And I'm going to break it all down for you very simply here on this hot take on the Midas Dutch network and on Legal AF recall, that is starting in March, Donald Trump started to use the Alien Enemies act to deport hundreds and thousands of people out of the United States. Judges like Judge Boasberg in the District of Columbia challenged his use of the Alien Enemies act, found that it was not properly used, but that got blocked and never made its way up to the United States Supreme Court on that issue. So the only case of all the deportations and removals that looks like it's going to be on a fast track in a return track back to the United States United States Supreme Court about the use of the Alien Enemies act is this case. Now, the Alien Enemies act is from 1798. It says that the president, it's not necessarily a war power, but it's like a war power that the president to repel an enemy incursion, predatory incursion, war can get rid of the people from this country that are from those countries at war with the United States. We've used it three times in the past. Presidents have used it three times in the past. Famously or infamously. For instance, Franklin Delano Roosevelt used it to take German and Japanese Americans and put them in concentration camps during World War II and then remove some of them. Other presidents have done it. In the War of 1812, it was also done, et cetera, et cetera. Trump is the first modern president to try to use it. And now this 5th Circuit Court of Appeals, 2 to 1, made two decisions. They seem to conflict, but I'll sort it out on the 2 to 1, Southwick and Carrillo Ramirez. So Bush and Biden appointees, they ruled in the majority decision, which is the prevailing decision, that Donald Trump could not use the Alien Enemies act, that there was no predatory incursion, there was no war, and therefore he cannot remove people pursuant to that statute. Now, they took pains to tell the Trump administration in the world that he can remove them under other statutes. He just can't remove them in a summary fashion pursuant to the Alien Enemies Act. But two to one, in a different two to one with Southwick joining the maga, right winger Andrew Oldham, two to one, ruled that the due process notice that was given to these people in the Northern District of Texas of seven days was sufficient, whereas Carrillo, or sorry, Carrillo Ramirez, said in dissent that it needed to be at least 21 days. So they had a quibble fight over the amount of days for notice. But the core majority decision is the underlying use of the Alien Enemies act is unconstitutional and improper and illegal by Donald Trump. Now, I'm going to read to you from certain pages of it, but I wanted to give you that kind of high level. I'm glad you're here on the Midas Touch Network. Take a moment, hit that free subscribe button, slide over to Legal AF substack, where we're doing reporting like this every day, every hour at the intersection of law and politics. Here's what the majority decision says, written by Judge Southwick. Now, how we got here is what we call writs of habeas corpus. One thing that came out of this spring is that the Supreme Court has said if you're going to remove these people, they all need due process rights under the Fifth Amendment and they need, they need to bring their case to federal judges by writ of habeas corpus, which means technically, we will have the body, we will have the body brought, the person brought into court who says they've been illegally arrested or detained. Now, here's what that's, here's what the, the majority opinion says, written by Judge Southwick, starting on page two. The the petitioners filed for a writ of habeas corpus in federal court alleging that they were about to be removed to El Salvador. They're from Venezuela, but they're going to be sent to El Salvador to be tortured upon arrival, apparently by the dictator there, Bukele. The proclamation was issued under the Authority of a 1798 statute applicable only in the event of a declared war, an invasion or predatory incursion by a foreign nation or government. And that's what's missing here. And it allows the president to detain alien enemies, that those were the internment camps during World War I of the Japanese and the Germans Americans. Petitioners sought an opportunity to dispute that they were members in the organization, which is Trend Aragua, and also to show that the proclamation was unlawful. The petitioner's motion for temporary restraining order to prevent the removal made its way to the Supreme Court, where the Supreme Court granted a temporary injunction keeping them in the country. The Supreme Court then remanded the case back to the 5th Circuit, sent it back to them to determine whether the factors for a preliminary injunction to block removal have been satisfied, and also whether the government's notice to these individuals of their removal satisfied due process. That's the 7 days versus the 21.
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They then go over the only three times when the statute has ever been used by a president and they get into the weeds about what is a declared war or enemy incursion or predatory incursion. And then they end it this way. On page four, we will discuss we state now that the case law we just cited and others we will review do not directly or unambiguously give us the answers to the Supreme Court's question. So they're basically shrugging their shoulders a bit. Thus, judicial humility is particularly appropriate here. A decision must be made, of course, for acceptance or rejection by the Supreme Court. So it's almost like they're saying we're confused. There's very little case law. This really has to come from the Supreme Court. We'll make a ruling even though with humility we don't think it's the we know it's not the final ruling. And we need guidance from the United States Supreme Court. So here's what their final ruling is. That will now go to, to the Supreme Court. Our analysis leads us to grant a preliminary injunction to prevent removal. Because we find no invasion or predatory incursion, we're not at war with Venezuela, despite the fact we just blew up the boat with 11 people on it related to a drug trade. Conclude on the current record that the updated notice satisfies due process and remand for further proceedings. To be clear as to our ruling, two judges agree that the revised notice procedures satisfied due process, at least based on the current record. And then they go on to say that the due process was sufficient. Now, look in the boat blow up that just happened, they asked Marco Rubio, the Secretary of State, are we at war? What was the justification for you to breach sovereignty and blow up a drug ship in the Caribbean who you claim was part of a Venezuelan, the Venezuelan dictatorship regime? I'll leave that, he said, I'll leave that to the, to the Office of the Legal Counsel on that one. Let me play that clip.
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The legal authority for this strike.
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The legal authority, yeah. Well, look, again, I'm not going to answer for the White House Counsel. Suffice it to say that all of those steps were taken in advance. The President has designated these as terrorist organizations.
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C
But this is just a facade. They knew this decision had come out or was coming out and they wanted to be at war with Venezuela and blow up a boat. It's not the first time we ever, we ever claim that a boat blew up as a justification for a war. See the Gulf of Tonkin that happened during our, in our, in our prior history. So the dissenter here, because that's 2 to 1. So again, the big picture, 2 to 1. Trump doesn't have the right to impose or use the powers under the Alien Enemies act because there's no war. Nothing's been declared by Congress, and there is no predatory incursion sufficient under the case law to, to, to allow for him to remove under that statute. However, the notice, the due process that was given about the use of the statute, the seven days was sufficient, and that was two to one. Southwick and Oldham joining together there. So two different two to one decisions baked into one ruling. We have a dissent. It goes on for 80 pages. It's actually longer than the majority decision. Let me give you the headline on that. That was written by Oldham. Now, Oldham is a major MAGA Trump appointee and he and another judge of the 5th Circuit Judge Ho, James Ho, are trying out to be on the United States Supreme Court and take. Take the place of Alito or Thomas should one or both of them retire or die. So you have to understand the ruling and the dissent based on that context, that they are trying to show their allegiance to Donald Trump and that they are trying to get the next job when and if somebody dies. And this is just their tryout. So what Oldham effectively said in his dissent goes on for 80 pages. But I'll give you the just the gist is that President, we should always give. Bend over backwards to give strong deference to a president about foreign affairs and national security. And what if he says we're at war, even though we can see that we're not, we're at war. If he says it's a predatory incursion, it's a predatory incursion. But you can see the dangerous slippery slope related to that. Because if objectively we are not at war, but he says it, we are. Presidents can do crazy things like suspend the Constitution, declare martial law under a false pretense, a false pretext. And what Oldham is saying is that judges shouldn't be able to push back and give oversight on that and do the checks and balance. That's a dangerous place to be, Judge Oldham. That's a dangerous world, especially one that's occupied by a President Trump. So what's gonna happen next? This is gonna go up to the United States Supreme Court. Obviously, it's the only case about the Alien Enemies act that will get to them on the substance, it'll be accepted. I don't think it'll be on an emergency appeal, but stranger things have happened. If it's an emergency appeal, it'll come up through. I think Justice Alito is the justice for the Fifth Circuit Court of Appeals. It's either him or Thomas. Then it'll get to the full court. They'll either do two briefs and then an oral argument or three briefs and then an oral argument if they do it on the regular docket. We're coming up on the new term. It's three weeks away for the United States Supreme Court. We'll follow it all on Legal AF, YouTube and here on the Midas Touch Network. So until my next report, I'm Michael Popak.
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Can't get your fill of Legal af?
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Me neither.
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That's why we formed the Legal AF substack. Every time we mention something in a hot take, whether it's a court filing or a oral argument, come over to the substack. You'll find the court filing and the oral argument there, including a daily roundup that I do called Wait for it Morning af. What else? All the other contributors from Legal AOF.
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Are there as well.
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We got some new reporting, we got interviews, we got AD free versions of the podcast and hot takes web where Legal AF on substack. Come over now to free subscribe.
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