DC Circuit Judge Reminds Us We Were Nicer To *Literal Nazis* Than Venezuelan Nationals
When politicians talk about being “tough on crime,” there’s an unspoken understanding that what they mean is that they’re going to be tough on criminals. Given the presumption of innocence and notions of due process baked in to our judicial system, its been long understood that you had to prove that the “criminals” were actually criminals before you could get tough on them. The Trump administration decided to bypass all of that — “looking criminal” is enough to get you on the wrong side of the law. Over 200 Venezuelan nationals were deported for their alleged ties to the criminal gang Tren De Aragua, but the government never met the burden of proving that they were, you know, members of or affiliated with the gang. The presumption shift to assuming guilt unless proven innocent has been waved away by Trump’s invocation of the Alien Enemies Act of 1798, but a D.C. Circuit judge was quick to point out that there was an (almost universally understood to be bad) group of foreign nationals that fared much better under this law’s enforcement: Nazis. Law.com has coverage:
“There were planeloads of people. There were no procedures in place to notify people,” said Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit. “Nazis got better treatment under the Alien Enemies Act when this happened here, where the proclamation required the promulgation of regulations and they had hearing boards before people were removed.”
“The question is whether the implementation of this proclamation, without any process to determine whether people qualify under it” is valid, Millett said. “If the government says we don’t have to give process for that, then y’all could have picked me up on Saturday and thrown me on a plane thinking I’m a member of Tren de Aragua and given me no chance to protest it and say somehow it’s a violation of presidential war powers for me to say, ‘Excuse me. No, I’m not. I’d like a hearing.’”
Substituting evidence and due process for vibes and punishment is exactly the sort of thing the tyranny fighting Founding Fathers started a war over. There’s a technical issue over whether the case should have been brought in Texas or D.C. that should thrill the 1Ls that are finally getting a mental grip on questions of venue, but the focus really should remain on the threat to liberty these rapid deportations pose. As obvious as it is to say that sending someone to a slave labor camp should at least involve a trial, there’s a new way to articulate the bare minimum: we should at least offer people the bare respect for due process that we offered Nazis.
‘Nazis Got Better Treatment’: DC Circuit Judge Slams DOJ Attorney on Alien Enemies Act Deportations [Law.com]
Earlier: Trump White House Tests Supreme Court Loyalty With Increasingly Crackpot Legal Arguments
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.
