The White House and the courts must come to a common sense understanding of their obligations
Some federal trial judges have thrown opposition to President Donald Trump's immigration agenda into high gear. They seek to trigger a confrontation between the president and the Supreme Court despite efforts by both to compromise. Worse yet, they are drawing the federal courts beyond their areas of competence and interfering with the president's authority in foreign affairs and national security. The justices should step in to make clear that federal courts must pay due deference to the executive's constitutional responsibilities, while President Trump should re-affirm that even illegal aliens receive due – albeit limited – process.
The latest salvo came this week from Maryland federal Judge Paula Xinis, who is hearing the case of Kilmar Abrego Garcia, an illegal alien whom the Trump administration mistakenly sent to El Salvador. Earlier this month, Xinis had commanded the Trump administration to immediately produce Garcia in court, even though he was no longer under the control of the United States. Her rash order prompted the Supreme Court to intercede. The justices called upon the Trump administration to "facilitate" Garcia's return, and to inform the trial court of its efforts, but also cautioned Xinis to pay "due regard for the deference owed to the Executive Branch in the conduct of foreign affairs."
The Supreme Court's order should have headed off a crisis between the President and Judge Xinis. It followed a similar move by the justices in reviewing Judge James Boasberg's ruling that the Trump administration had no authority to send 137 suspected Venezuelan gang members to El Salvador under the Alien Enemies Act of 1798. That laws allows the president to detain and expel citizens of a country with which we are at war or which launches an invasion or "predatory incursion" of the United States. Even though Boasberg and the D.C. Circuit Court of Appeals rushed to find that no declared war or invasion by Venezuela had occurred, the justices found that those courts had jurisdiction over the case, and held that the illegal aliens' due process rights would have to be vindicated by federal judges in Texas or Louisiana, where they last had been present in the United States.
The Supreme Court's caution that lower court judges respect the president's responsibility to conduct foreign affairs made for common sense. Federal courts cannot order the president to send special forces abroad to seize Garcia or anyone else held in El Salvador's terrorist jails, nor can it dictate to the president how to conduct diplomacy. Nevertheless, Judge Xinis directed this week that the Trump administration "take all available steps" to return Garcia "as soon as possible." On appeal, Judge J. Harvie Wilkins of the Fourth Circuit Court of Appeals excoriated the Trump administration for not cooperating with Judge Xinis and raised the possibility that the Trump administration could deport even U.S. citizens, claim error, but then do nothing to seek their return.
Despite Judge Wilkinson's advice to both branches to reach a compromise, Judge Xinis has proceeded to command the Trump administration to explain, under oath, its diplomatic efforts to free Garcia.
This shows little respect for the caution, urged by the Supreme Court, not to intrude into the executive branch's authority over foreign affairs. Will Xinis next demand that communications between the State Department and El Salvador be produced in open court? Will she sanction the government unless U.S. embassy staff travel to her Maryland courtroom and testify about their meetings with El Salvadorean officials? Perhaps she will want to set the United States negotiating positions and offers.
The deeper concern behind this single judge's interference with the president's conduct of foreign relations is the threat that wayward trial courts will begin to interfere with fundamental national security decisions that the Constitution vests in the presidency. A federal court has never before overruled the decision of a president or Congress that the United States has suffered an attack or invasion, and the Supreme Court wisely rejected the D.C. courts' efforts to do so. Admittedly, the Trump administration is making the unprecedented claim that a gang has risen to the level of a foreign government that is conducting an invasion or predatory incursion into the United States. I have argued elsewhere that this would be a difficult showing to make and would depend on the facts of the Venezuelan government's control over TdA and on whether international criminal activities can constitute a military threat to the national security.
But that is an entirely different question from whether the federal courts are the proper institution to make that judgment. The Supreme Court itself has long recognized that there are certain "political questions," which the Constitution itself has committed to the final decision of the elected branches of government, such as impeachment or war. In Marbury v. Madison, which established the Court's right of judicial review, Chief Justice John Marshall also declared that "the President is invested with certain important political powers, in the exercise of which he is to use his own discretion." For his decisions, "he is accountable only to his country in his political character, and to his own conscience." These issues "respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive."
Courts have never second-guessed what is the most political of questions: whether the nation is at war. Federal judges have refused to rule on the constitutionality of not just the Iraq and Afghanistan wars, but also every war in American history. Courts do not have the ability, understanding, or expertise to make sensitive decisions on national security threats, nor can they judge the costs and benefits of different foreign policies. Courts decide cases and controversies in formalized legal settings driven by the parties; they should hesitate to make decisions involving the difficult probabilities and risks of war and national security.
What courts can do is provide a measure of due process to aliens before their deportation. The Trump Justice Department acknowledged this very principle before the Supreme Court in conceding that the Venezuelans had a right to due process before their deportation under the Alien Enemies Act as well as under the regular immigration laws. While the Supreme Court can force the lower courts to pay greater respect to the president's authority in national security, the White House can also bring the controversy to a close by respecting the judiciary's reading of the Due Process Clause to provide a hearing even to illegal aliens accused of serious criminal violence. Both branches owe it to the Constitution, and the American people, to come to a common sense understanding of the obligations imposed on the other to protect the national security while respecting due process.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
CNN
8 minutes ago
- CNN
Strike US assets, disrupt global trade, race for a bomb: How will Iran respond to Trump's attacks?
US President Donald Trump's decision to strike Iran's nuclear facilities puts the Middle East in a volatile position, with all eyes now on Tehran's next move. Speaking in Istanbul, Iran's Foreign Minister Abbas Araghchi said on Sunday his country has 'a variety of options' when deciding how to respond to the US attacks. From striking US bases in the region, to possibly closing a key waterway to global shipping, Iran is likely mulling its next moves. All carry inherent risks for the Islamic Republic, Israel and the United States. Here's what to know: Direct US involvement in the conflict could see Iran's Islamic Revolutionary Guard Corps (IRGC) activate what remains of its proxies across Iraq, Yemen and Syria, groups which have previously launched attacks on American assets in the region. While Iran's strongest ally in the region was once Lebanon's Hezbollah, that group has been significantly weakened by Israeli attacks. The Council on Foreign Relations (CFR) says the US maintains a presence at 19 sites in total across the region, with eight of those considered by analysts to have a permanent US presence. As of June 13, the CFR estimated some 40,000 US troops were in the Middle East. In Iraq, for example, there were 2,500 US troops as of late last year. An Iranian attack on these forces is not inconceivable. In 2020, an Iranian missile attack on a US garrison left more than 100 soldiers with traumatic brain injuries. The Iranians have said 'several times' that if the US 'joins this war and attacks their nuclear facilities, they will retaliate against US forces in the region, against US interests, and there are a lot of those,' CNN political and global affairs analyst Barak Ravid said. A resurgence of attacks from Yemen against US assets is already on the table. Yemen's Iran-backed Houthi rebels previously vowed to attack American ships in the Red Sea should the US join Israel's conflict with Iran. A prominent Houthi official said in a social media post early Sunday that 'Trump must bear the consequences' of the US airstrikes on Iranian nuclear facilities. It is unclear if this marks the end of a US-Houthi ceasefire struck in May, in which Washington said it would halt its military campaign against the Houthis in exchange for the group stopping its attacks on US interests in the region. Knowing that it can't outright win a conflict against Israel and the US, experts have said that Tehran could seek to engage in a war of attrition, where it tries to exhaust its adversary's will or capacity to fight in a drawn-out and damaging conflict, which Trump at the outset of his presidency said he wanted to avoid. Iran also has the power to influence the 'entire commercial shipping in the Gulf,' Ravid said, should it decide to close the Strait of Hormuz, a key oil shipping route. There have so far been no material disruptions to the global flow of oil. But if oil exports are disrupted, or if Iran tries to block the Strait of Hormuz, the global oil market could face an existential crisis. The strait links the Persian Gulf to the open ocean and is a key channel for oil and liquefied natural gas exports from the Middle East to the global market. About 20 million barrels of oil flow through the strait each day, according to the US Energy Information Administration. A prominent adviser to Iran's supreme leader has already called for missile strikes and the closure of the Strait of Hormuz. 'Following America's attack on the Fordow nuclear installation, it is now our turn,' warned Hossein Shariatmadari, the editor-in-chief of the hardline Kayhan newspaper, a well-known conservative voice who has previously identified himself as a Khamenei 'representative.' Geographic leverage over global shipping gives Iran the 'capacity to cause a shock in oil markets, drive up oil prices, drive inflation, collapse Trump's economic agenda,' Mohammad Ali Shabani, an Iran expert and editor of the Amwaj news outlet, told CNN. Some experts say that Iran is very likely to race for a nuclear bomb now, even if the current regime collapses and new leaders come in place. 'Trump just guaranteed that Iran will be a nuclear weapons state in the next 5 to 10 years,' Trita Parsi, executive vice president of the Quincy Institute in Washington, DC, said on X. 'Particularly if the regime changes.' Parsi has said that even if the regime collapses and new military elements assume power, they are likely to be much more hawkish than the current regime and race toward a nuclear weapon as their only deterrent. Experts have previously said that Iran likely moved its stocks of enriched uranium from its key nuclear facilities amid Israeli strikes.. Nuclear power plants that generate electricity for civil purposes use uranium that is enriched to between 3.5% and 5%. When enriched to higher levels, uranium can be used to make a bomb Israel and the US accuse Iran of pursuing nuclear weapons; Tehran insists its program is peaceful. Iran is also likely to withdraw from the Nuclear Non-Proliferation Treaty, or the NPT, under which it has pledged not to develop a bomb. 'Iran's response is likely not just limited to military retaliation. NPT withdrawal is quite likely,' Ali Vaez, director of the Iran Project at the International Crisis Group, said on X. Iran's first response to the US' attack on its nuclear sites was to attack Israel, not US bases. Iranian missiles hit a group of buildings in Tel Aviv, where 86 people were admitted to hospital with injuries overnight and on Sunday morning, according to Israel's ministry of health. Knowing it may not be able to sustain a full-on confrontation with the US, and hoping that Trump will scale back on his involvement following Sunday's strike, Iran may merely seek to perpetuate the status quo, fighting only Israel. Trump may follow the same playbook as in the 2020 attack that killed Iranian commander Qasem Soleimani, Shabani told CNN's Becky Anderson. Trump at the time wanted to 'send a big message, get the headlines, show US resolve, but then avoid a wider war,' Shabani said. While Iran may feel it has to retaliate to save face, it may be a bloodless response, similar to what happened in 2020, when it launched a barrage of missiles at US bases in Iraq, which resulted in traumatic brain injuries to personnel but no deaths. Two military analysts have said Iran could resort to 'asymmetric' measures – such as terrorism or cyberattacks – to retaliate against the US because Israeli attacks have reduced Iran's military capabilities. 'I think the IRGC (Islamic Revolutionary Guard Corps) is probably trying to figure out what capabilities it has left' as its missile stockpile dwindles, said CNN national security analyst David Sanger. 'I think (the IRGC is) going to be a little bit careful, and I suspect that's going to take us to all of the asymmetric things they can do: cyber, terrorism. I think that they're probably going to be looking for things where the US cannot just put up the traditional defenses,' he added. Similarly, retired Maj. Gen. James 'Spider' Marks, head of geopolitical strategy at Academy Securities, an investment bank, told CNN that Israel 'did a pretty good job of damaging Iran's capacity to launch its rather robust missile inventory.' But, 'albeit wounded,' the IRGC still has 'some tremendous capacity,' he said. 'It has capabilities that are already within the region and then outside the region. We are vulnerable… around the world, where the IRGC has either influence or can make things happen asymmetrically.' Iran has refused to return to the negotiating table while under Israeli attacks. On Sunday, Araghchi said he does not know how 'much room is left for diplomacy' after the US military strikes on Iranian nuclear facilities. 'They crossed a very big red line by attacking nuclear facilities. … We have to respond based on our legitimate right for self-defense,' Araghchi said. Parsi said that by doing so, 'the Iranians have cornered themselves.' 'Their aim is to force Trump to stop Netanyahu's war, and by that show his ability and willingness to use American leverage against Netanyahu,' Parsi wrote. 'But the flip side is that Tehran has given Israel a veto on US-Iran diplomacy – by simply continuing the war, Israel is enabled to block talks between the US and Iran.' Iranian and European officials met Friday in Geneva for talks, which an Iranian source said started out tense but became 'much more positive.' Speaking Sunday, Araghchi said the US had decided to 'blow up' diplomacy. 'Last week, we were in negotiations with the US when Israel decided to blow up that diplomacy. This week, we held talks with the E3 (group of European ministers)/EU when the US decided to blow up that diplomacy,' Araghchi said on X. Vaez, of the International Crisis Group, told CNN's Christiane Amanpour that the 'Iranians were reluctant to negotiate with a gun to their head, and that gun has already been triggered. 'The more likely situation is that the talks are over for now.' CNN's Eve Brennan, Brad Lendon and Mostafa Salem contributed reporting.
Yahoo
16 minutes ago
- Yahoo
Trump Is Still Planning to Attend NATO Summit
President Trump still plans to attend a NATO summit in The Hague this week, a senior administration official said. He will leave Washington on Tuesday morning and arrive late in the evening in the Netherlands, the official said.
USA Today
20 minutes ago
- USA Today
'Perilous hour': World reacts after U.S. bombs Iranian nuclear sites
Israel hailed President Donald Trump's decision to bomb three Iranian nuclear sites as an action that would "deny the world's most dangerous regime the world's most dangerous weapons." But the United Nations and many countries around the world called for swift de-escalation while others criticized the attacks. Trump said that the strikes June 22 "totally obliterated" Iran's nuclear enrichment facilities and that Iran had to "make peace" or face more, "far greater" attacks. In response, Iranian Foreign Minister Abbas Araqchi warned of "everlasting consequences." A recorded statement from Israeli Prime Minister Benjamin Netanyahu congratulated Trump for taking what he described as a "bold decision" that "will change history." The reaction from other world quarters was more restrained and called for Iran to return to the negotiating table. British Prime Minister Keir Starmer acknowledged that Iran's nuclear program was a "grave threat to international security." He also said a "diplomatic solution" was needed to "end the crisis." Japanese Prime Minister Shigeru Ishiba said it was "crucial" there be "a quick de-escalation of the conflict." The European Union's top foreign policy official, Kaja Kallas, urged "all sides to step back, return to the negotiating table and prevent further escalation." There were stronger words from longtime U.S. adversaries Venezuela and Cuba. Cuban President Miguel Díaz-Canel characterized the U.S. bombing as a "dangerous escalation" that "seriously violates the U.N. charter and international law and plunges humanity into a crisis with irreversible consequences." Yvan Gil, Venezuela's foreign minister, said his country "firmly and categorically condemns the bombing." U.N. Secretary-General Antonio Guterres said he was "gravely alarmed" by the use of U.S. force on Iran. "There is a growing risk that this conflict could rapidly get out of control − with catastrophic consequences for civilians, the region, and the world," Guterres said in a statement. "At this perilous hour, it is critical to avoid a spiral of chaos. There is no military solution. The only path forward is diplomacy. The only hope is peace." Trump's decision to directly attack Iran alongside Israel comes more than a week after Israel started attacking Iran with a view to destroying its nuclear enrichment facilities. He did so without congressional authorization. 40,000 reasons to worry: U.S. troops in Middle East vulnerable to counterattack There has been been no independent assessment of Trump's assertion that U.S. bombers destroyed Iran's three major nuclear sites at complexes in Fordow, Natanz and Isfahan. "Now that the strikes have come, Tehran faces a stark dilemma: retaliate and risk a wider war, or pause to consolidate at home," said Burcu Ozcelik, a senior research fellow in Middle East security at the Royal United Services Institute, a London think tank that specializes in military affairs.
