Jack Goldsmith

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.

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.

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.

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.

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,

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.

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.

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.

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.

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.

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.