“The first case, Oklahoma Statewide Charter School Board v. Drummond, poses the question of whether the 46 states with charter schools must offer public funds to schools that would teach religious doctrine as truth. The second case, Mahmoud v. Taylor, involves the claim that religious parents should have a right to opt their children out of controversial public school curricula.
Taken together, Drummond and Mahmoud threaten the twin cornerstones of the American education system that Brown affirmed six decades ago: Since Brown, America’s public schools have operated under a norm of inclusive enrollment, and they’ve offered all children a shared curriculum that reflects the values that communities believe are essential for civic participation and economic success.
If the court tears down these foundational norms, the schools that remain in their wake will be a shell of the democracy-promoting institution the court itself has long lionized — and that healthy majorities of parents continue to support in their local neighborhoods. And although there’s a way to avoid the worst outcome in both cases, the path ahead is uncertain: It will require the court to follow history in an evenhanded manner (in Drummond) and progressives to accept a middle ground (in Mahmoud).
The legal challenges presented in Drummond and Mahmoud did not arise out of thin air. They are part of a long-term conservative movement strategy aimed at eroding public education.”
“The Trump administration has, for the fourth time in history, invoked the war-time Alien Enemies Act of 1798, even though our nation is not at war—and its last use remains one of the most shameful episodes in American history.
That involved President Franklin D. Roosevelt’s Executive Order 9066 in 1942. It was the basis for the internment of around 112,000 people of Japanese descent, 70,000 of whom were American citizens.”
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“For years, we’ve endured constitutional conservatives’ bloviating about the importance of protecting the sacred principles enshrined in our Constitution. Those include the separation of powers—legislative, executive and judicial checks on one another—and due process. Many of these hypocrites are defending the administration’s policies and bashing a judge for halting the hasty airlift of accused criminal aliens to a prison run by a banana-republic strongman—a directive the president promptly ignored.
Perhaps most of these deportees are criminals and a threat (unlike peaceful Japanese residents who posed no threat whatsoever). They still deserve due process—their day in court, so to speak—to prove they have indeed violated the law. Constitutional conservatives of all people should understand that the government gets things wrong and individuals deserve protection from arbitrary actions by its agents.
We’ve already seen examples of immigrants who were deported based on the government allegedly mistaking a soccer tattoo for gang insignia. Let’s say you were walking around and, based on your attire or ethnic background, the police suspected you were a gang-banger and took you to jail. Wouldn’t your first call be to your lawyer? Don’t you deserve due process to prove you were a passerby before being shipped to Pelican Bay? (And non-citizens generally are considered persons under the Constitution—and also deserve due process.)
The administration isn’t just ignoring these constitutional due-process protections but seems to be actively mocking them. “What were all these young women that were killed and raped by members of (Tren de Aragua)—what was their due process?”” asked Tom Homan, director of Immigration and Customs Enforcement.
Murder and rape always are horrific, but everyone still gets a trial to, you know, prove they actually committed the crime.”
“President Donald Trump claims that the Alien Enemies Act of 1798 grants him the power to deport certain Venezuelan-born aliens without due process based on the mere allegation of membership in a criminal street gang.
But the text of the Alien Enemies Act does not allow the president to do anything of the sort. “Whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,” the act states, the president may direct the “removal” of “all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized.”
The alleged crimes of the alleged members of the street gang Tren de Aragua do not meet this legal standard. There is no “declared war” between the United States and Venezuela, and there is no “invasion or predatory incursion” of the U.S. by “any foreign nation or government.” The gang is not a foreign state, and the gang’s alleged crimes, as heinous as they may be, do not qualify as acts of war by a foreign state. Trump’s frequent talk about a rhetorical “invasion” of the U.S. by undocumented immigrants utterly fails to satisfy the law’s requirements.
The fatal defects of Trump’s position are further illuminated when you compare Trump’s stance with James Madison’s 1800 “Report on the Alien and Sedition Acts.” (The Alien Enemies Act was one of the three laws that comprised the Alien and Sedition Acts.)
As Madison explained, there are two categories of “offences for which aliens within the jurisdiction” of the United States “are punishable.” The first category involves “offences committed by the nation of which they make a part, and in whose offences they are involved.” In this case, “the offending nation can no otherwise be punished than by war.” In other words, the offending nation in this case has committed an act of war against the United States. The aliens who fall within this category are “alien enemies.”
The second category involves offenses committed by aliens “themselves alone, without any charge against the nation to which they belong.” In this case, “the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations; the individual only, and not the nation is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations.” The aliens who fall within this second category are “alien friends.”
Notice that “alien friends” may certainly be punished by the normal U.S. legal system for whatever crimes they commit while on U.S. soil. They may be deprived of their life, their liberty, and their property. But—and this is a big but—they may only be deprived of life, liberty, or property after they have received due process of law, which is what the Constitution guarantees to all persons, not just to all citizens.”
“The American Bar Association and dozens of other bar groups this week slammed President Donald Trump’s continued crackdown on the legal system as an attack on the rule of law.
“Words and actions matter,” the groups wrote in an open letter on Wednesday, which did not mention the president by name. “And the intimidating words and actions we have heard and seen must end. They are designed to cow our country’s judges, our country’s courts and our legal profession.””
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“Trump has come down hard on Democratic-leaning law firms, signing executive orders and memos suspending security clearances and barring the federal government from hiring employees from firms like Perkins Coie and Covington and Burling. One firm initially in Trump’s crosshairs — Paul, Weiss — saw its sanctions lifted after agreeing to perform pro bono legal work for conservative clients and ending diversity policies.
The retribution tour has now made its way to Congress, with GOP Senate offices told to take note of the blacklisted firms in an email sent last Friday.”
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““If lawyers do not speak, who will speak for our judges? Who will protect our bedrock of justice? If we do not speak now, when will we speak? Now is the time. That is why we stand together with the ABA in support of the rule of law,” the groups wrote.”
“The senators made clear that spending bills approved by Congress and signed into law by the president must be regarded as law, not an optional recommendation to the executive branch: “Just as the President does not have a line-item veto, he does not have the ability to pick and choose which emergency spending to designate.”
They said they are “concerned” about “sudden changes to OMB’s interpretation of long-standing statutory provisions,” adding it could be “disruptive to the appropriations process and make it more difficult for the Appropriations Committee to work in a collaborative fashion with the Administration.”
They also scolded Vought for not bringing this issue to them directly: “Collaboration will become even more challenging when the Committee is first informed of such developments through the press, rather than notified through official channels, as was the case here.””
“The government now claims “he had willfully failed to disclose his membership in several organizations, including a United Nations agency that helps Palestinian refugees, when he applied to become a permanent U.S. resident last March,” reports The New York Times. “The government also said that Mr. Khalil failed to list his continuing employment with the Syria Office in the British Embassy in Beirut, Lebanon, after 2022.” If these allegations are true, they may put the deportation on firmer footing: It is easier for the authorities to argue that the First Amendment isn’t a relevant factor when the issue is whether Khalil disclosed relevant information during a green card application.
But even if that is true, the Justice Department has shown its true motivation, even if it may be able to weasel out of the hole it’s dug. Since it told The Free Press that “the allegation here is not that he was breaking the law” and suggested that “he was mobilizing support for Hamas and spreading antisemitism in a way that is contrary to the foreign policy of the U.S.,” it sure seems obvious that it was Khalil’s role in the Columbia protests that attracted ICE agents initially. If officials can now find a better pretense to deport him, that may pass more legal muster, but they already made clear that this is retribution for protest. This will have a chilling effect on speech. And if they legitimately believed he was a threat, they should have actually spent the time to substantiate this.”
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“As for what actually happens to Khalil, it’s not clear these new allegations will make much of a difference: “In order to deport Mr. Khalil on the basis of the new allegations, the government would have to convince an immigration judge that any failure to disclose the relevant information was willful, and that it would have made a difference in his chances of receiving legal permanent residency status””
“Does it matter that Khalil is not a U.S. citizen? In the 1945 case Bridges v. Wixon, the Supreme Court held that “freedom of speech and of press is accorded aliens residing in this country.” That case involved a longtime legal resident from Australia who was deemed deportable based on the allegation that he had been affiliated with the Communist Party.
“Once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders,” Justice Frank Murphy wrote in a concurring opinion. “Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment. None of these provisions acknowledges any distinction between citizens and resident aliens.””
“Jeffrey Goldberg, editor in chief of The Atlantic, reported on Monday that he had been added by National Security Adviser Mike Waltz to an encrypted Signal group chat with the White House’s principals committee to discuss U.S. war plans in Yemen. Goldberg received the first message at 11:44 a.m. on Saturday, March 15, and around two hours later, the White House announced a new air campaign against Houthi forces. The National Security Council confirmed the group chat was real and claimed Goldberg was added by accident.”
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“The constitutional and policy merits of war are two separate questions, but they’re impossible to fully disentangle. The point of asking Congress for a declaration of war is to allow the people’s representatives to weigh the pros and cons in a deliberate, transparent way. War is the most serious decision a government can make. Citizens of a republic should not have to perform Kremlinology—or wait for an official to fat-finger his contact list—to figure out what their leaders are planning.”
“There are many excellent reasons why Boasberg should not be impeached, including the fact that Boasberg’s judgment against Trump is both persuasive and well-grounded in the law. Trump may claim that he has the unilateral authority to deport alleged criminal aliens without due process. But the administration’s arguments in support of that sweeping claim fail to pass muster on multiple counts.
Under the Alien Enemies Act of 1798, “whenever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government,” the president may direct the “removal” of “all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized.”
Trump invoked that law in his March 15 proclamation ordering the “immediate apprehension, detention, and removal” of alleged members of the street gang Tren de Aragua, who are allegedly “conducting irregular warfare and undertaking hostile actions against the United States…in conjunction with Cártel de los Soles, the Nicolas Maduro regime-sponsored, narco-terrorism enterprise based in Venezuela.”
Except there is no “declared war” between the United States and Venezuela. And while Trump and his allies have certainly promoted the idea of a rhetorical “invasion” of the U.S. by unlawfully present aliens, that is merely a talking point. Such rhetoric does not alter the plain text of the Alien Enemies Act, which refers to military invasions by a “foreign nation or government.” As James Madison explained in his “Report on the Alien and Sedition Acts,” published on January 7, 1800, “invasion is an operation of war.” The alleged crimes of the alleged members of a nonstate street gang do not magically become “an operation of war” just because the president says so in the hopes of unlocking extra powers.
Speaking of James Madison, he said that the role of the judiciary was to stand as “an impenetrable bulwark against every assumption of power in the legislative or executive.” That description is probably as good of an explanation as any for why Trump, just like Roosevelt before him, is so eager to stop the courts from doing their job.”
““We can simply choke off the money,” Trump said in a 2023 campaign video. “For 200 years under our system of government, it was undisputed that the president had the constitutional power to stop unnecessary spending.”
His plan, known as “impoundment,” threatens to provoke a major clash over the limits of the president’s control over the budget. The Constitution gives Congress the sole authority to appropriate the federal budget, while the role of the executive branch is to dole out the money effectively. But Trump and his advisers are asserting that a president can unilaterally ignore Congress’ spending decisions and “impound” funds if he opposes them or deems them wasteful.
Trump’s designs on the budget are part of his administration’s larger plan to consolidate as much power in the executive branch as possible.”
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“The prospect of Trump seizing vast control over federal spending is not merely about reducing the size of the federal government, a long-standing conservative goal. It is also fueling new fears about his promises of vengeance.”
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“Trump and his aides claim there is a long presidential history of impoundment dating back to Thomas Jefferson.
Most historical examples involve the military and cases where Congress had explicitly given presidents permission to use discretion, said Zachary Price, a professor at the University of California College of the Law, San Francisco. Jefferson, for example, decided not to spend money Congress had appropriated for gun boats — a decision the law, which appropriated money for “a number not exceeding fifteen gun boats” using “a sum not exceeding fifty thousand dollars,” authorized him to make.
President Richard Nixon took impoundment to a new extreme, wielding the concept to gut billions of dollars from programs he simply opposed, such as highway improvements, water treatment, drug rehabilitation and disaster relief for farmers. He faced overwhelming pushback both from Congress and in the courts. More than a half dozen federal judges and the Supreme Court ultimately ruled that the appropriations bills at issue did not give Nixon the flexibility to cut individual programs.
Vought and his allies argue the limits Congress placed in 1974 are unconstitutional, saying a clause in the Constitution obligating the president to “faithfully execute” the law also implies his power to forbid its enforcement. (Trump is fond of describing Article II, where this clause lives, as giving him “the right to do whatever I want as president.”)
The Supreme Court has never directly weighed in on whether impoundment is constitutional. But it threw water on that reasoning in an 1838 case, Kendall v. U.S., about a federal debt payment.
“To contend that the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible,” the justices wrote.”