Jack Goldsmith

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.