The following is a lightly edited transcript of the May 2 episode of the Daily Blast podcast. Listen to it here.
Greg Sargent: This is The Daily Blast from The New Republic, produced and presented by the DSR network. I’m your host, Greg Sargent.
Big news: A federal judge has ruled that President Donald Trump’s arrests and removals under the 1798 Alien Enemies Act are illegal. This is one of the most important rulings yet in the battle against Trump’s lawlessness. In fact, this ruling suggests that in this regard, things may get worse for Trump. It opens the door to the possibility that the courts may not give Trump the deference he had hoped for as commander-in-chief to effectively reinvent reality to carry out his lawless designs. Today we’re talking about all of this with one of our favorite legal commentators, Leah Litman, author of a new book about the Supreme Court called Lawless. Leah, thank you so much for coming on.
Leah Litman: Thanks for having me.
Sargent: So federal district judge Fernando Rodriguez, a Trump appointee, just issued this ruling in the case involving Venezuelans who have been designated as members of the Tren de Aragua gang, many of whom are being removed to El Salvador pursuant to the Alien Enemies Act of 1798. The judge ruled that this use of the statute in this manner is illegal. Leah, can you explain which of the plaintiffs this applies to in the broader landscape of lawsuits on this, and what it means?
Litman: Yeah. This particular case concerns individuals who are detained in that district—so in the Southern District of Texas. And that’s significant, and partially a result of the fact that the Supreme Court held that these challenges to the Alien Enemies Act had to proceed via habeas petitions. And so it’s in part because of that procedural posture that the district court said this ruling just applies to individuals who are being detained in the jurisdiction.
Of course, the Southern District of Texas is not the only place where the administration is detaining people and from where it might try to then summarily expel them to El Salvador. There’s still a ton of moving parts in this litigation. Another district court in the District of Colorado also concluded that individuals who were detained there could not be expelled under the Alien Enemies Act because the administration’s invocation of the Alien Enemies Act was illegal. There are a few other temporary restraining orders that are in place: one in New York, another in the District of Massachusetts.
Again, there are so many different immigration detention facilities that the government still has the power to shuffle people around a fair amount. Some of the most recent horrifying expulsions we read about were carried out from Louisiana; those were the instances where the administration sent U.S. citizens to Honduras. But this is just the patchwork landscape that the Supreme Court has created.
Sargent: And of course, there are dozens and dozens of Venezuelans who have already been removed to El Salvador, who are in a maximum security prison for terrorists there—but we’ll come back to that. The critical thing about this new ruling is what the judge said about the use of the Alien Enemies Act. Now, Trump’s use of this statute is absurd. It requires us to be in a declared war with a foreign nation or government, or we have to be under invasion or predatory incursion by a foreign nation or government. The judge said that Trump’s application of this to these Venezuelans “exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.” Leah, can you talk about why that’s so important?
Litman: Yeah. That’s super important because it is one of the first cases that actually rules on whether the administration can use the Alien Enemies Act for this group of people at all. Thus far, the vast, vast majority of the rulings on these matters—again, except for that District of Colorado ruling—have been such preliminary relief that the district courts have not yet had occasion to really examine the underlying merits of the claims, that the administration just can’t use the Alien Enemies Act for this reason at all. Thus far, judges have really only been able to nibble around the edges—asking whether the administration has to afford certain process or procedures before expelling anyone, not whether it can even use this statute, this proclamation at all.
Sargent: I want to read another line from the ruling. The judge says this, “Allowing the president to unilaterally define the conditions when he may invoke the Alien Enemies Act and then summarily declare that those conditions exist would remove all limitations to the executive branch’s authority under the Alien Enemies Act and would strip the courts of their traditional role in interpreting congressional statutes.” Leah, that seems pretty important to me because Trump is basically trying to say that as commander in chief, he can unilaterally declare by fiat a group of people to be “invaders,” a term MAGA throws around with wanton abandon, and then subject them on that basis to renditions with zero due process. The judge seems to be saying there, There have to be limits on this power. Can you tell us why that’s so important?
Litman: Yeah. So that’s important not just for this case but, I think, across a range of areas. Donald Trump is basically invoking this idea of emergencies and exceptions to assert extraordinary powers. Here, he’s basically claiming there is a foreign invasion and incursion, therefore [he] can use this summary removal deportation procedure to remove and expel people under other processes that are basically less burdensome on the executive branch. In the cases of tariffs, he’s arguing there is some fentanyl crisis that warrants basically crashing the U.S. economy and the global economy. So there are a host of instances where he’s basically saying, There are emergencies that give me extraordinary powers, therefore no one can examine my powers. And this is just one example. And so it is heartening to have a district judge saying, Actually, that’s not how this works.
Sargent: So what happens now, Leah? Do other judges rule that deporting people from their districts under the Alien Enemies Act is illegal? When does it really start to add up to something? And how does the appeals process now unfold? What do you anticipate?
Litman: There are, as we were discussing, other places that have these temporary interim relief in place. So it’s very possible we will soon get rulings from those judges that review the underlying merits about whether the administration can use the Alien Enemies Act at all in those jurisdiction, at least as applied to those individuals subject to the proclamation. But because the district judge issued a preliminary injunction, in this case the government can appeal that to the Fifth Circuit.
It will probably ask the district judge for a stay of that preliminary injunction. When the district judge probably denies that, [it] will immediately run up to the Fifth Circuit and then the U.S. Supreme Court. And so it’s possible this case will get up to the U.S. Supreme Court shadow docket rather quickly just as a request to stay that is put on hold this preliminary injunction ruling.
Sargent: Well, you have a lot to say about the Supreme Court. You wrote a book about it. It seems to me that if the Supreme Court were to side with Trump on this matter at the end, then what the judge said in this ruling would come true. Trump would have no limitations on his authority under the Alien Enemies Act. That seems frightening to me. Do I have that right? What do you expect from the Supreme Court on this?
Litman: Yeah, I think that that’s completely right as far as what to be frightened about. We have seen this play out really from the outset. He asserted the plenary unreviewable authority to determine who were members of Tren de Aragua, who could constitute [as] alien enemies, what constituted an invasion or predatory incursion to do all of that without due process, to remove people permanently to an El Salvador megaprison with no chance to bring them back in the case of errors or wrongful deportations. Now we’ve seen him, again, deporting U.S. citizens, so all of this is just immensely, immensely terrifying. And I guess I hold out hope—and I am not an optimist when it comes to the Supreme Court and the federal courts—that this particular case, similar to birthright citizenship, will prove too much for the Supreme Court and the federal courts more broadly. But I still don’t want to let them off the hook too quickly because I worry that people will give the Supreme Court a little bit too much credit for ruling against the Trump administration in a few cases as that administration’s popularity just plummets and ignore the ways in which the Supreme Court is furthering the administration’s ideological agenda in other cases and the ways in which they paved the way for the Trump administration in the first place.
If I can just make like a quick plug for my book, Lawless. This is literally the opening. The conceit of the book is Sam Alito flying the “Stop the Steal” flag while clearing the way for Donald Trump to appear on the ballot and delaying his election interference charges—and then the court just declaring the president above the law in the immunity case. And it’s like, Well, where did the president get this crazy idea that he is above the law and has unreviewable authority? He got it from his daddy Chief Justice Roberts and all of those guys.
Sargent: Well, Donald Trump did thank John Roberts.
Litman: Exactly.
Sargent: There’s a reason he thanked him. He was right to thank him. John Roberts did him a number of major solids.
Litman: He said he won’t forget it. He said he won’t forget it.
Sargent: He won’t forget it. And by the way, we should add that the Supreme Court also did Trump an immense favor by delaying the January 6 litigation in a really absurd, bad faith way that just simply did not have to happen. And it’s a simple truth about the situation—that if we had gotten a conviction in the January 6 case, it would have been significantly less likely that Donald Trump would have been elected.
Litman: Yeah. But I hold out hope, again, that these Alien Enemies Act cases, given the administration basically thumbing their nose at so many different district courts ... They basically had a presser in which they declared they were not abiding by the Supreme Court decision. Donald Trump has essentially admitted it in interview after interview, No, I haven’t asked President Bukele to return Kilmar Abrego Garcia. Sure, I could do it if I wanted to, but why would I? I think the combination of that coupled with the underlying claim of authority, the fact that they are deporting U.S. citizens coupled with the plummeting approval rating of the administration—I think all of that is creating the conditions that make it so much easier for the courts to rule against the administration on this case, on birthright citizenship.
Sargent: Well, I want to clarify for listeners what you’re talking about there. Kilmar Abrego Garcia is the Salvadoran national who was removed wrongfully—and admittedly in administrative error by the administration—to that same maximum security prison in El Salvador. And the Supreme Court ruled that the administration must facilitate Abrego Garcia’s return. They are not doing that. They are simply thumbing their nose at the court’s ruling. I want to ask you this question though. Stephen Miller went out there and he said over and over and over that the court actually sided with them on the Abrego Garcia case. This was a lie. But does that in itself affect the way the court looks at this? Do some of the justices, the conservative justices who aren’t just completely gone, look at that and say to themselves, Well, they’re really just giving us the middle finger. Stephen Miller is lying to Trump and lying to the public about what we said about this case as they defy us? Do they look at all that, and does it affect them?
Litman: I think it does. I think the justices care deeply about their own authority. They are accustomed to being the final say and have their decisions respected. To have a decision so wildly mischaracterized, have the administration basically insist they need not do diddly squat that the Supreme Court suggested they did ... The Supreme Court gave them, let’s be clear, a lot of wiggle room and a lot of room to maneuver in which they could argue like, Yeah, we tried to facilitate his release, but we just couldn’t do it. But facilitate doesn’t mean do nothing. And yet the administration has been quite clear that that’s what their position is. So I think the Supreme Court’s commitment to judicial supremacy, and the idea that they get to decide these matters, is absolutely going to be rubbed the wrong way by all of the things Stephen Miller and all of the other Trumpers are doing.
Sargent: This brings up something that I think we should touch on a little bit. I think this is another example of how the people around Trump who are really trying to bring about authoritarian rule are overreaching. I strongly suspect that Stephen Miller, maybe Tom Homan if he’s able to have a thought like this, which I doubt, others like them who are really hardcore MAGA ideologues think this is their moment, right? They think to themselves, Let’s provoke the confrontation with the court and get Trump to finally defy them.
Litman: Yes.
Sargent: And I’m not sure Trump is willing to do that. I don’t know. I think he might be. And I’m probably going to be criticized as being soft on Trump for saying this, but he might not be. So maybe Stephen Miller and those around him who are egging this on—who are essentially thumbing their nose at the court, trying to get the court to rule against Trump so that he defies it so that they can cripple it—are overreaching. What do you think of that?
Litman: No, I think that that is a distinct possibility. And I basically think we have to hold these two thoughts in our minds. And one is that there is this distinct possibility that we descend into this anarchy and authoritarianism. On the other hand, their assertions of power are so absurd, they are beatable. Those two things can be both true: that they are overreaching in ways that make it possible and plausible to push back and defeat, but also they might try it and that would be disastrous, catastrophic, and all kinds of scary. I think we should take heart by a lot of the things that are happening as far as the dwindling public support and increasing public pushback on him.
Sargent: Agree 100 percent. Just to wrap this up, how do you see this particular case unfolding right now? Do you expect more rulings in the lower courts along these lines? Does it really start to put the brakes on these deportations? Do we get the 140 or however many are in the El Salvadoran prison back home? Do we get Kilmar Abrego Garcia back home? What happens?
Litman: Yeah. So I do anticipate more lower court rulings ruling against the administration on the Alien Enemies Act. I also think these cases are going to make their way up to the Supreme Court. Maybe this is just horribly naive of me. I don’t usually think of myself as someone that’s naive about the Supreme Court, but if the administration continues on the path it is on—namely, again, imploding the U.S. economy, and doing a bunch of things that make a bunch of people’s lives worse—the Supreme Court will probably rule against them on this matter.
As to what happens to Kilmar Abrego Garcia and the other individuals wrongfully expelled to El Salvador, a part of me just so desperately wants to believe we will get them back that I imagine Bukele maybe hopefully being scared about what a Democratic administration, a Democratic Congress would do if he doesn’t return individuals whose return we are demanding. That is what I want to believe will happen. And I believe it is possible that we can achieve that. I guess that’s how I’d answer that part of the question.
Sargent: Well, it sounds like across the board, in a scenario like that, we end up with something a little bit closer to the rule of law than the other scenario would be. Folks, if you enjoyed this, definitely check out Leah Littman’s new book, Lawless, about the Supreme Court. Leah, thank you so much for coming on with us today.
Litman: Thanks again for having me.
Sargent: You’ve been listening to The Daily Blast with me, your host, Greg Sargent. The Daily Blast is a New Republic podcast and is produced by Riley Fessler and the DSR Network.