The Supreme Court is putting Venezuelan child killers ahead of the law
President Donald Trump shocked and awed three cartels when he invoked the Alien Enemies Act to expedite the removal of alleged Tren de Aragua criminals: the narco-human traffickers, the deep state, and – sadly – the Supreme Court of the United States.
In temporarily blocking the president from proceeding with deportations under the Act, our brave justices should have known better. Not merely because the vicious Venezuelan gang Tren de Aragua murders children, seizes property, and terrorises communities in (primarily) Democrat-run jurisdictions. But because the justices, and the judges on the inferior federal courts, are supposed to interpret laws according to their plain, historically-grounded meaning. If words mean something, but the justices surrender to a politicised redefinition, then America ceases to be a nation of laws.
Apparently, that's a hard task for Supreme Court justices educated at Harvard Law School and Yale Law School. After decades of intellectual exertion, the late Justice Antonin Scalia might well have thought he had won the fundamental argument for constitutional originalism: that words must mean now what they meant at the time of any given law's enactment.
But many judges don't like that. They want words to mean what their elite friends say they mean. That's perhaps understandable for a Harvard-educated 'institutionalist' like Chief Justice John Roberts, who seems to think that the opinions of the Harvard faculty lounge still ought to govern America. Few others have any excuse – sorry, 'excuse'.
Our justices and judges have one job: to understand words. Sure, it can be a difficult job. But they know how to do it well enough. As Justice Elena Kagan once famously said: 'We're all textualists now.' To understand the meaning and modern application of words written before yesterday, judges are trained to look back at 'text, history, and tradition'.
But history is hard. And the Supreme Court doesn't necessarily have a grand tradition of understanding it particularly well. If it did, then the justices wouldn't have put off on process grounds ruling on the president's invocation of the Alien Enemies Act. They wouldn't be setting up a waiting-forever game while barbarian cartels terrorise American citizens. They wouldn't be letting more children get murdered by turning our nation of laws into an unsovereign territory of Waiting for Godot.
When the Alien Enemies Act was passed in 1798, America was a young country looking back at a Europe ruled by kingdoms. Just south of those European kingdoms, on the other side of the Mediterranean, were the Barbary states. The Barbary states weren't legitimate nation-states. They were failed, amoral, slave-trading, kleptocratic, human- and drug-trafficking states. They only existed because many Europeans were too lazy to attend to their own defence.
After the Declaration of Independence of 1776, the British Empire was naturally disinclined to protect American merchant vessels. And Americans, in turn, were disinclined to just let their ships get destroyed and their people enslaved by pirates. So, we did something about it. We took it to them. As the US Marine Corps' official hymn famously goes, we took it 'to the shores of Tripoli' during the First Barbary War, which took place just a few years after the Alien Enemies Act was passed.
And that's exactly what America is also doing right now. The more things change, the more they stay the same. When the Iran-backed Houthis try to disrupt international trade in the Red Sea, the US bombs them. In Yemen, Trump was doing more or less what Thomas Jefferson did two-plus centuries ago.
But what would the early-republic American presidents have done if the Barbary pirates had set up shop on American soil? Just let them have their way in Boston or Philadelphia? No; they probably would have raised a militia to kill them all. Or, if it was easier, they would have arranged for them to quickly and efficiently get out of our country post-haste. They would have made use of the provisions of the Alien Enemies Act.
Would Chief Justice John Marshall have effectively taken the side of these hypothetical Barbarian corsair occupiers by saying, 'Dear Mr President, not sure if you can deport these rapists, plunderers, and pillagers; did you check all your paperwork boxes regarding these illegal enemy aliens?' To ask such a rhetorical question is to answer it. The very notion that the Supreme Court might have had any place at all in the debate would have struck everyone alive as absurd.
The American president at the time of the passage of the Alien Enemies Act was John Adams. Around the time, American citizens were being attacked and enslaved by Barbarian pirates. And that, mutatis mutandis, is what's happening now, too. Venezuela is a failed communist state. And confirmed Tren de Argua gangbangers are effectively Venezuelan, barbarian corsair pirates. The only difference is that they've set up shop in the American homeland.
John Marshall would be appalled by John Roberts, who has taken and twisted the precedents of the Supreme Court to such a radical degree that he has essentially concluded: 'A constitutional republic? Well, maybe it can be invaded by barbarians. Maybe our women can get raped by them, our apartment buildings plundered. We're trying to figure it out!'
Unfortunately for the integrity of the United States Constitution, Harvard Law School has not been sending its best. But some federal judges, we must assume, are still good people.
To a Harvard-trained mind, Roberts and his colleagues are defending the Constitution as they fiddle around trying to figure out whether words mean what they say, while President Trump is the dangerous radical. To anyone who understands text, history, and tradition, though, the president has exercised the precise opposite of power-hungry arrogation: extreme restraint.
Josh Hammer is Newsweek senior editor-at-large, host of The Josh Hammer Show, senior counsel for the Article III Project, and author of the new book, 'Israel and Civilization: The Fate of the Jewish Nation and the Destiny of the West' (Radius Book Group)
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