My recent article, “Executive Branch Powers, Judicial Branch Role” (https://civicsandcitizenship.org/executive-branch-powers-judicial-branch-role/), elicited a variety of opinions on whether the Administration (Executive Branch) is correct to use the Alien Enemy Act and Ludecke v Watkins to deport illegal migrants.
My Opinion and Emphasis
I wrote, “…What I see going on is the prevailing winds of personal and political views. That’s not new in our nation. It’s human. Still, We the People must change our focus from parties, politics, and people to the law and the facts. Keep a laser-like focus on the law and the facts.”
So, today we have an example of laser-like focus on the law and the facts from one of our participants, who is a lawyer. (I am a civics teacher, not a lawyer :-). Matt expresses his thoughts without criticizing or focusing on parties, politics, or prominent people. I appreciate that he sent his long-form thoughts first in a direct message for my consideration.
Matt’s Opinion and Emphasis
Here’s Matt’s opinion on “Executive Branch Powers, Judicial Branch Role”:
“The admin relies on Ludecke v Watkins in support of its deportation pursuant to the Alien Enemy Act. I submit the same is distinguishable and cannot be used in support.
The Act allows for removal in 2 instances, “declared war” between the U.S. and “any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted or threatened against the territory of [the U.S. ] by any foreign nation or government and the President makes public declaration of the event.”
Ludecke involved a German national and the court noted there was a “declared war” with Germany. Moreover, the court found that the state of war remained at the time of removal.
In the instant case, there is no “declared war” with the “foreign nation”, Venezuela.
Ludecke holds that judicial review is limited to whether there is a state of war. Thus, consistent with the concept and original purpose of judicial review, questions of constitutionality, whether the challenged action is authorized by the Constitution itself or constitutionally valid legislation, remains in the purview of the judiciary.
The admin argues in the alternative that the challenged action is authorized under Article II as an inherent power. But the Act’s very existence mandates a prompt rejection of that argument. The admin not only embraces the Act, but relies on it. The admin and Ludecke confirm the Act’s constitutionality. Therefore, the very same conduct at issue could not be an inherent power while at the same time only authorized by Congress. Congress cannot vest a power in the Executive that already exists in Article II.
Having determined that Ludecke is distinguishable and therefore non precedential, we must once again look to the statute.
Unlike Ludecke, the admin must rely on the second instance authorizing deportation and the judiciary, pursuant to judicial review, is obligated to determine if the action is consistent with the language of the Act.
The subject “aliens” are Venezuelan. While the admin may have “made public proclamation” of the claimed second instance, its “proclamation” is subject to judicial review.
I submit that the influx of criminal elements across a porous and grossly negligent, lax border does not constitute an “invasion or predatory incursion” by a “foreign nation or government” within the meaning of the Act.
Accordingly, I submit that the Act does not authorize the deportation and may be enjoined as unconstitutional.
Having said all of the above which is limited to whether Ludecke and the Act authorize the action, the action should be authorized by statute. It is perplexing that such a statute does not exist.” – Matt Nahrgang
Different Opinions, Same Goal
Matt and I hold different opinions, and we agree to disagree. However, I want to see how the law and the facts shake out in this case. We need to educate ourselves by hearing both sides of these critical issues. It’s too important to ignore.
This is Common Sense Civics and Citizenship. 🇺🇸
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