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
custody and brought back to the United States. That's, as I see it, one side of what they're thinking. On the other hand, the president made a mistake and should and may have a duty to do everything he can to bring this person back. I read this ambiguous decision as trying to get both sides to cool down and reach some accommodation. And unfortunately, that is not what happened on Remand.
On Remand, the district court, in my judgment, acted hastily, did not give deference to the government. It required it to immediately start giving information. The government responded obnoxiously and basically saying, we're not going to play ball here. They gave a little information. They said he was alive.
And the government gave an extremely narrow interpretation of what the Supreme Court's order meant. So both the district court read the opinion one-sidedly and then the government read it one-sidedly. And now we're in a worse position.
And this is part of their PR campaign.
So this is actually something of a novel issue. Let me just say one thing to amplify what you said, and then I'll answer your question. It's a serious problem that the administration has because there are lots of unlawful immigrants in the United States, and the lawful process to deport them takes a lot of time and a lot of resources, and the Alien Enemies Act was a possible shortcut.
And maybe other gangs that they could find to meet that. Right. The statutory criterion, which I don't think is going to happen.
I don't really know the answer to that question. I mean, the problem is... that the executive branch is going to claim, and it will have some authority for this, is that once they're outside of the country and under the control of another sovereign, then formally they're not in their custody, and formally the government can't do anything about it. So the custody matters for that point.
It's under sovereign control, but that might be the case even if the person weren't in prison. That's where the legal issue comes up. Judge Wilkinson, for whom I clerked, said that this case is a real dilemma. One very important thing for everybody to understand is federal courts have limited remedies. They cannot right every wrong under their proper doctrine.
And this is an especially hard one once the person goes out of the country and is there. And there is going to be a limit in which the court can order the executive to negotiate to do this release. Ultimately, I think it's going to have to depend to some degree on the president's good faith. On the other hand, as Judge Wilkinson pointed out, and I think Justice Sotomayor did too,
You're setting up a system where the president can snatch someone, send them abroad and say, I can't do anything about it. And that clearly is not something that courts can tolerate, as Judge Wilkinson put it. How that cashes out into law is to be determined.
Not from the government's perspective, as far as I can tell. Their claim is once the person is outside of sovereign control and in another country, then it's outside of their hands. That's the best as best I can read their argument.
Well, you know, it seems like a problematic argument. I agree with you. The question is, how are courts going to remedy it? Right. Because there are going to be limits to courts ordering the president to negotiate with a foreign sovereign. In any other presidency, this person would have been returned by now because this should be a political disaster.
But really, the alien, non-alien thing, this person was taken out unlawfully, and a U.S. citizen would have been taken out unlawfully. And that should be enough to trigger the return. But the government, they haven't spoken about citizens. But nothing in their argument distinguishes citizens from non-citizens, as best I can tell.
So I teach a course called Federal Courts, which involves issues like this. This would be an action for damages against a federal officer for violating the Constitution or violating a statute.
That sounds good. And the Supreme Court has put up massive, massive barriers to that in the last 20 years. So this might be a case that squeezes in the very narrow exception, but basically it would be hard.
I would say yes, and I think that that order was a first effort. I think that their really strongest interest is to try to stop it going forward. Right. I think the court is really trying to lay down markers for the future as much as for trying to fix this case.
I will just say, this is not a happy thing to say, but if the Trump administration plays hardball here and says, we are not going to negotiate and you can't make us, I don't think the court can make them negotiate with the foreign sovereign. Now, there may be some sanctions they can impose. I'm not sure, but I don't think that that's going to be effective. I hope it doesn't come to that.
The people arguing the case for... Depending on how they argue it and whether they were being candid. But I want to emphasize that it's going to be very hard to enforce a remedy here, ultimately, if the Trump administration doesn't want to play ball. And I'm not sure that there are five justices on the court that would even try to go there.
So much of our law depends on a presumption of regularity in the presidency. It depends on the courts thinking that they can trust the president to comply with orders and to be honest and truthful in court and the like.
If we got to that situation, the court would have to impose more and more extreme remedies, ordering the government in more and more extreme ways not to take steps to send anyone out of the country They would just have to enjoin the various agencies, and you'd have to get the right kind of case and the right kind of plaintiffs and maybe the right kind of class action, and it might be tricky.
Showing 361–380 of 462 · page 19 of 24
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