Jack Goldsmith
speaker
462 appearances
2 recordings
1 series
first heard Apr 2025
last heard 10 Sep
Jack Goldsmith’s voice in public audio — every appearance, attributed to the second.
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recordings per month · last 12 monthsRecordings per month over the last 12 months — 1 in all, peaking in Sep 2026 with 1.
Appearances
He's wiped them out inside the executive branch. Congress has not only been silent, but it's facilitated The wiping out of including congressional prerogatives by confirming people that they knew were going to do things that were going to emaciate Congress. The only check right now, the only real check right now on this presidency legal check is the courts.
And so, you know, if the courts were issuing directives on a regular basis and he was defying them or if the game playing continues to such a degree that they're not really paying attention to law. Then we would be in a place where the president was approaching lawlessness. I don't think we're close to that yet. I want to emphasize it's extremely early in the judicial process.
There's a lot going on. There are 150 cases. I can't keep up with them all. And the administration can do a lot of damage before courts can weigh in and kind of set boundaries.
So I haven't studied the visa removals. I do know the Secretary of State has broad authority to do that. I mean, I find them despicable because of, you know, basically punishing someone because of their speech and pretty mild speech in some cases. I know more about the Alien Enemies Act.
And this is extreme and novel because this statute, which dates to the 1790s, it has only been used a few times and only in war, real war. It has two provisions, one of which allows deportation when there's actually a declared war, and then another provision which allows deportations when there is an invasion or predatory incursion by a foreign nation or government.
That is the part they're relying on. It's very questionable whether the Venezuelan terrorist organization that has come to the United States in some respects satisfies that. I think they're probably going to lose on that ultimately. There's nothing wrong with the administration trying to invoke the Alien Enemies Act. It's a statute on the books, and there's nothing wrong with them invoking it.
It was wrong for them to deport 240 people, basically an anticipatory circumvention of a district court judge, maybe unlawfully. I think probably they were deported unlawfully before a court had time to rule on it. And then the Supreme Court kind of weighed in on that in an emergency orders opinion, basically said these folks all had to have due process and notice before this could happen.
So trying to put a stop on it going forward. But that was very bad.
Or is that... The precedent is actually extremely unclear. I'm sorry to tell you. That's fine, no. It's a precedent involving actual alien enemies in wartime. There they actually got process in the executive branch before they came to court. And I read the case to say that there's judicial review over whether the person is actually an alien enemy. Right. That's the important point.
And I think that's what the court basically affirmed in short order. That's the important thing. But not only whether you're a member of the gang, but whether the gang satisfies the statutory criterion. They might not constitute an invasion by a foreign nation or government. They probably don't. They're a private entity.
The government in its briefs is trying to argue that they're closely associated with the state. The government, in my opinion, has an uphill climb to even get the statute to apply. So that gets to be litigated, in my view, and also the question whether, if the statute does apply, the individuals actually fall under the statute.
That was the claim for at least some of them and maybe all of them. Yes. But even if... they were gang members, they still might have been deported illegally because those gang members might not implicate this statute. I don't think it does. I don't think that this is a predatory invasion by a foreign nation.
They basically early on were arguing that their power was unreviewable.
Yes, and this has been a pattern, yes. The Solicitor General's brief in the Supreme Court I mean, it wasn't a perfect brief, but it was a much more sober brief on the law. And this has been a pattern. The lower court briefings have been making wildly extravagant claims. And by the time it gets to the SG and goes to the Supreme Court, it gets toned down and refined.
He was determined to be removable, but not to El Salvador because he would be, the court determined, subject to persecution there. So this was the one place... He was not supposed to be sent. And they sent him there. They didn't explain it, but they said it was a quote unquote administrative mistake. They've acknowledged that it was a mistake and he should not have been sent there.
So he's there now. And the question is what to do about it. What can, if anything, the courts do about it? Right.
So I'll try to be brief and tell me if I get too technical. But basically, the Supreme Court in an emergency order – Issues what was an ambiguous opinion at the time and has grown more ambiguous as we read it more and see what's happened since. It basically said that the order properly requires the government to facilitate Garcia's release from custody in El Salvador. That sounds good for him.
But it also said that the district court may have overstepped its mandate by saying that the government had to effectuate the release. And it also said that the district court had to pay the government, the president, deference in foreign affairs. They took a maximal, as they have in every other context, a maximal interpretation of the deference foreign courts have to give them.
And they've been exerting claims of foreign policy exclusive power. Anywhere there's a foreign policy issue in the case, they've been saying the courts can't deal with it. And it's an extravagantly broad position.
I would say it's an implausible argument. Yes. So this goes back to the district court. And basically, I see the court as trying to nudge both sides to do the right thing. The right thing is obviously that the district court cannot tell the president that he has to negotiate with a foreign sovereign and to ensure that this person is brought back to U.S.
Showing 341–360 of 462 · page 18 of 24
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