Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
It is Colorado's Morning News. Marty Lens Gina Gande, Good morning.
(00:02):
The Aliens and Enemies Acts something that's being implored by
the Trump administration regarding the deportation of folks to El Salvador.
Speaker 2 (00:10):
Joining us now on the KWA Common Spirit Health Hotline
to talk more about it, as do you. Constitutional law
professors Ian Ferrell. Professor Ferrel, thank you so much for
your time. As always, thank you for having me on.
Speaker 3 (00:21):
I really appreciate it.
Speaker 2 (00:22):
Before we dive a little bit into what we saw
with the Supreme Court ruling yesterday, tell us a little
bit about what is the Alien's Enemies Act and how
it has been initiated in the past.
Speaker 3 (00:32):
Yeah, absolutely, So. The Alien Enemies Act is a law
that was passed by Congress way back in seventeen ninety eight.
So to give some context, that was during the French
Revolution and the US Congress was consumed by fear that
they would soon be at war with France, and so
(00:52):
the Act was passed to allow the US to protect
itself in that sort of situation. And so the Act
allows a president to detain and remove foreign citizens of
a hostile nation or government when either there is a
declared war with that nation or when that nation threatens
(01:16):
invasion or predatory in other words, military incursion against the US.
And you also asked when has it been used in
the past. Well, it's been used only three times in
the last two hundred and thirty six years. The first
was during the War of eighteen twelve, the second was
during World War One, and the third was during World
(01:39):
War Two. And the World War II example is the
most infamous because during World War II, it was the
Alien Enemies Act that was the purported legal basis for,
among other things, the racist internment of Japanese Americans in
prison camp during the war.
Speaker 1 (02:00):
Professor, two things come to mind. I think of John
Adams because that you mentioned it was seventeen ninety eighty
he was president. And secondly, and this isn't the most
important piece. When did it become the Alien's Enemy Act
when it was what the Aliens and Sedition Act? Is
it the same thing or is there a reason why
the name is different.
Speaker 3 (02:15):
Yeah, there's a couple of different things to play here.
There was also at the time another act called the
Alien Friends Act, which was allowed, like similar things to
happen even when we were in a war that was
gotten real fairly quickly because people realized that this gave
the president far too much power to simply remove people.
Speaker 2 (02:40):
So, Professor Ferrell, when we look at this exact ruling
from the Supreme Court, what happens next? I mean, what
does the process look like? The President Trump can do
as he has now been granted the possibility of invoking
the Aliens and Means Act like he was to begin with.
Speaker 3 (02:56):
Yeah, so the Supreme Court made a rule, made a
ruling yesterday, But it's important to understand what the rule
actually does and what it doesn't say as well. So
the most important thing to understand about what the Supreme
Court did yesterday is that the Court did not decide
whether or not Trump to use of the Alien Enemies
(03:18):
Act is lawful right. They expressly declined to reach that issue. Instead,
they ruled on three more preliminary things. So firstly, they
ruled that essentially the plaintiffs filed their paperwork in the
wrong place. They filed their request in a federal court
(03:40):
in Washington, DC, and the court said they should have
filed it in Texas. The second thing the court said
was that there was an injunction that prevented the government
from deporting people while this underlying question about whether the
president can use the Alien Enemies Act that was being determined.
(04:02):
The court removed that injunction. So essentially it said, while
we're trying to figure out this underlying question, which now
has to start all over again in Texas, while that's
being decided, the government can continue to deport people. But
the third thing they said is if you deport people,
so whether or not the Alien's Enemies Act applies, you
(04:23):
have to give people an opportunity before you deport them
to argue in court that they aren't, for instance, members
of prende a Agra, which the government was not doing
before it was supporting them.
Speaker 1 (04:35):
And there is the follow up to that. I guess
the other thing when you talk about it sounds like
when you talk about it was procedural more in the
ruling about where they like filing paperwork, if I understand
it from a very layman's term. But also this leads
to something else I've seen reported on that couldn't the
Trump administration do, for lack of a better term, court
shopping and go to more favorable courts to get some
of these rulings, Texas being one of those.
Speaker 3 (04:58):
Yes, so in in this case, I don't think they can.
You're absolutely right that it's procedural. The reason why they
said it's Texas rather than rather than DC is that
basically they said, you're using the wrong kind of writ
to or procedure to make this claim. They are making
(05:22):
a claim under the administrative under an administrative act, whereas
they should have been using what's called the rit of
havieor's corpus. Under the rit of habeas corpus, the claim
has to be made in the jurisdiction where you're being held.
So it's not that the Trump administration can just say, well,
(05:45):
we're going to choose this court of that court. What
they can do, however, and this is a genuine problem
that Justice subto Myore pointed to in her descent yesterday,
they can, They've done this in the past, move people around.
So it makes it almost impossible to make a claim
in the relevant court because they can in the middle
(06:07):
of the night take them out of the tension center
they're in Texas and move them to Florida and their
lawyers don't know, and then when something is filed in Florida,
they move them to California. So it really does make
it far more difficult for people to get their cases
heard before Court of as.
Speaker 2 (06:23):
Veraal with the minute we have left. What does this
mean for those who are already deported to El Salvador
under the Alien's Enemies Act.
Speaker 3 (06:32):
So far, this means nothing for them. In a related case,
which I'm sure your viewers, sorry, your listeners are aware of,
the government is arguing that even when they're admitting that
they made legal errors in sending someone to El Salvador,
they have no obligation to even try to get them back.
And so that's a separate case that's being heard, and
(06:57):
so we will find out what their status is in
a different set of proceedings. The decision yesterday doesn't affect
that directly.
Speaker 1 (07:06):
Professor of Constitutional Art at the University of Denvers Ian Ferrell,
thank you, thank
Speaker 3 (07:11):
You, appreciate talking to you guys.
It is Colorado's Morning News. Marty Lens Gina Gande, Good morning.
(00:02):
The Aliens and Enemies Acts something that's being implored by
the Trump administration regarding the deportation of folks to El Salvador.
Speaker 2 (00:10):
Joining us now on the KWA Common Spirit Health Hotline
to talk more about it, as do you. Constitutional law
professors Ian Ferrell. Professor Ferrel, thank you so much for
your time. As always, thank you for having me on.
Speaker 3 (00:21):
I really appreciate it.
Speaker 2 (00:22):
Before we dive a little bit into what we saw
with the Supreme Court ruling yesterday, tell us a little
bit about what is the Alien's Enemies Act and how
it has been initiated in the past.
Speaker 3 (00:32):
Yeah, absolutely, So. The Alien Enemies Act is a law
that was passed by Congress way back in seventeen ninety eight.
So to give some context, that was during the French
Revolution and the US Congress was consumed by fear that
they would soon be at war with France, and so
(00:52):
the Act was passed to allow the US to protect
itself in that sort of situation. And so the Act
allows a president to detain and remove foreign citizens of
a hostile nation or government when either there is a
declared war with that nation or when that nation threatens
(01:16):
invasion or predatory in other words, military incursion against the US.
And you also asked when has it been used in
the past. Well, it's been used only three times in
the last two hundred and thirty six years. The first
was during the War of eighteen twelve, the second was
during World War One, and the third was during World
(01:39):
War Two. And the World War II example is the
most infamous because during World War II, it was the
Alien Enemies Act that was the purported legal basis for,
among other things, the racist internment of Japanese Americans in
prison camp during the war.
Speaker 1 (02:00):
Professor, two things come to mind. I think of John
Adams because that you mentioned it was seventeen ninety eighty
he was president. And secondly, and this isn't the most
important piece. When did it become the Alien's Enemy Act
when it was what the Aliens and Sedition Act? Is
it the same thing or is there a reason why
the name is different.
Speaker 3 (02:15):
Yeah, there's a couple of different things to play here.
There was also at the time another act called the
Alien Friends Act, which was allowed, like similar things to
happen even when we were in a war that was
gotten real fairly quickly because people realized that this gave
the president far too much power to simply remove people.
Speaker 2 (02:40):
So, Professor Ferrell, when we look at this exact ruling
from the Supreme Court, what happens next? I mean, what
does the process look like? The President Trump can do
as he has now been granted the possibility of invoking
the Aliens and Means Act like he was to begin with.
Speaker 3 (02:56):
Yeah, so the Supreme Court made a rule, made a
ruling yesterday, But it's important to understand what the rule
actually does and what it doesn't say as well. So
the most important thing to understand about what the Supreme
Court did yesterday is that the Court did not decide
whether or not Trump to use of the Alien Enemies
(03:18):
Act is lawful right. They expressly declined to reach that issue. Instead,
they ruled on three more preliminary things. So firstly, they
ruled that essentially the plaintiffs filed their paperwork in the
wrong place. They filed their request in a federal court
(03:40):
in Washington, DC, and the court said they should have
filed it in Texas. The second thing the court said
was that there was an injunction that prevented the government
from deporting people while this underlying question about whether the
president can use the Alien Enemies Act that was being determined.
(04:02):
The court removed that injunction. So essentially it said, while
we're trying to figure out this underlying question, which now
has to start all over again in Texas, while that's
being decided, the government can continue to deport people. But
the third thing they said is if you deport people,
so whether or not the Alien's Enemies Act applies, you
(04:23):
have to give people an opportunity before you deport them
to argue in court that they aren't, for instance, members
of prende a Agra, which the government was not doing
before it was supporting them.
Speaker 1 (04:35):
And there is the follow up to that. I guess
the other thing when you talk about it sounds like
when you talk about it was procedural more in the
ruling about where they like filing paperwork, if I understand
it from a very layman's term. But also this leads
to something else I've seen reported on that couldn't the
Trump administration do, for lack of a better term, court
shopping and go to more favorable courts to get some
of these rulings, Texas being one of those.
Speaker 3 (04:58):
Yes, so in in this case, I don't think they can.
You're absolutely right that it's procedural. The reason why they
said it's Texas rather than rather than DC is that
basically they said, you're using the wrong kind of writ
to or procedure to make this claim. They are making
(05:22):
a claim under the administrative under an administrative act, whereas
they should have been using what's called the rit of
havieor's corpus. Under the rit of habeas corpus, the claim
has to be made in the jurisdiction where you're being held.
So it's not that the Trump administration can just say, well,
(05:45):
we're going to choose this court of that court. What
they can do, however, and this is a genuine problem
that Justice subto Myore pointed to in her descent yesterday,
they can, They've done this in the past, move people around.
So it makes it almost impossible to make a claim
in the relevant court because they can in the middle
(06:07):
of the night take them out of the tension center
they're in Texas and move them to Florida and their
lawyers don't know, and then when something is filed in Florida,
they move them to California. So it really does make
it far more difficult for people to get their cases
heard before Court of as.
Speaker 2 (06:23):
Veraal with the minute we have left. What does this
mean for those who are already deported to El Salvador
under the Alien's Enemies Act.
Speaker 3 (06:32):
So far, this means nothing for them. In a related case,
which I'm sure your viewers, sorry, your listeners are aware of,
the government is arguing that even when they're admitting that
they made legal errors in sending someone to El Salvador,
they have no obligation to even try to get them back.
And so that's a separate case that's being heard, and
(06:57):
so we will find out what their status is in
a different set of proceedings. The decision yesterday doesn't affect
that directly.
Speaker 1 (07:06):
Professor of Constitutional Art at the University of Denvers Ian Ferrell,
thank you, thank
Speaker 3 (07:11):
You, appreciate talking to you guys.
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