Democracy protects all the people from autocracy: Protect Migrant rights! Due process under th elaw

Echo editorial published by the Houston Chronicle:

Yes, the Tren de Aragua is a notorious gang. Its members traffic in people and drugs. They torture and kill with impunity in countries where they operate. They are despicable and dangerous criminals.

But, the gang is not what the White House makes them out to be: an invading military force. An invading military force looks like the Russian army, invading Ukraine. Or Allied soldiers, storming the beaches of Normandy.

Listen to someone like White House advisor Stephen Miller, (aka Hermann Göring's dobbleganger❗) and you’d expect Tren de Aragua soldiers to be scrambling onto Padre Island beaches in their own version of D-Day.

So how are we meeting this supposedly clear and present danger? Are Miller and company urging the president at least to call out the Civil Air Patrol, the U.S. Air Force’s civilian auxiliary? Armed with high-powered binoculars, Civilian Air Patrol members and young cadets could rush to the shores of the Gulf of — Mexico❓ America❓ — and scan sea and sky for jets flying in formation from the south, for submarine conning towers on the horizon.

Of course, the White House crew doesn’t actually believe we face a military tanks-and-commandos invasion. 

When the MAGA Republican administration use the word “invasion,” they mean something different. Usually, they’re talking about the huge number of people who either presented themselves at the border or crossed illegally during the first years of the Biden administration.

Those people look nothing like an organized army, or even a rag-tag militia, bent on some military objective. They’re a mix of individuals. Some are legitimate asylum seekers fleeing persecution; some are people simply seeking better jobs; and yes, some may be dangerous criminals.

The dangerous criminals should be deported; that’s a no-brainer. And that’s regular old law enforcement, not warfare.

But rather than sort through these people, to do the hard, slow work of separating the vicious from the well-meaning, the Trump administration is whipping up an emergency to justify acting in bad faith. The president effectively closed paths to asylum and terrified would-be migrants by sending (as far as we know "innocent") immigrants to a Salvadoran prison known for its cruelty, and without so much as a charge, trial or sentence.

It took a federal judge from Texas — a Trump appointee, in fact — to call the administration on its absurd and blatantly unconstitutional misuse of the Alien Enemies Act of 1798. It’s a wartime authority enacted during the presidency of John Adams. The act allows the president to detain or deport the natives and citizens of an enemy nation with whom we’re at war. Presidents have invoked the act three times: The War of 1812, World War I and World War II. It’s probably best known as the dubious rationale for the incarceration of more than 100,000 innocent❗ Japanese Americans during World War II.

U.S. District Judge Fernando Rodriguez, Jr., a 2018 Trump appointee, issued a permanent injunction last week against the administration’s use of the Alien Enemies Act to deport Venezuelan migrants to a prison in El Salvador without any semblance of due process — a right guaranteed by the Constitution. A former partner with the Houston law firm Baker Botts, the judge wrote that Trump’s reliance on the act “exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.”

Doing his own research, Rodriguez found that the words of the Alien Enemies Act in their original sense referred to armed forces. “[Trump’s proclamation] makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation,” he wrote in a 36-page ruling.

“Plain, ordinary meaning.” The judge’s words could have tripped off the tongues of Justices Clarence Thomas and Samuel Alito, perhaps the two most fervent constitutional “originalists” on the Supreme Court. The OG of “originalists” himself, the late Justice Antonin Scalia, would have concurred. Whether Rodriguez is an originalist, we can’t say. What we can say is that he respects the Constitution, a claim we cannot make for this president or his anti-immigration henchmen.

On Sunday, Trump admitted that. During an interview on “Meet the Press,” he was asked whether he believes he needs to uphold the Constitution. The president responded, “I don’t know.”

Never mind that upholding the Constitution is literally the president’s job. When Trump took the oath of office — which is all of one sentence — he swore to “preserve, protect and defend the Constitution of the United States.” He’s not supposed to stress-test the Constitution, bend it to his will or look for loopholes.

But that’s not how Trump sees it. “I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said,” he said during the NBC interview. His “brilliant” lawyers are trying to twist plain language and subvert American values. Trump is treating the Constitution like pliable taffy — not like the rock of American government and values.

Rodriguez is merely the latest of numerous federal judges attempting to remind the president that the rule of law still prevails, however threatened it might be.

The Venezuelan migrants the administration accused of “invading” the U.S. remain confined to a detention center near the Rio Grande Valley town of Raymondville. They may or may not even be gang members. Rodriguez, adhering to the law, did not say they have to be released immediately. He did not say they couldn’t, at some point, be deported. But he did side with the migrants on something fundamentally American: their constitutional right to “due process.”

“Due process.” Fifth and Fourteenth Amendment shorthand for justice, equality and fairness under the law, the phrase is fast becoming a mantra during these early months of Trump’s second term because of his willingness to circumvent laws and procedures. Whether it’s his effort to peremptorily end birthright citizenship or fire government employees without cause or cyclone through federal agencies, leaving wreckage and hardship in his wake, he’s likely violating the law and then daring judges to stop him. More and more are taking the dare on behalf of the American people.

Rodriguez’s order applies only to Venezuelan migrants held in the Southern District of Texas — which includes Houston — although judges in other jurisdictions where migrants are being held are likely to reach the same conclusion. Nor is Rodriguez’s order the final word. The government is likely to seek relief from the U.S. Court of Appeals for the 5th Circuit, whose ultra-conservative judges could very well reverse Rodriguez. The case is likely to reach the U.S. Supreme Court. That’s due process at work.

Earlier, facetiously, we mentioned the Civil Air Patrol. But it’s worth noting that during World War II, members of the venerable organization were credited with spotting 173 Nazi subs off the Atlantic coast and officially sinking two. 

Today, we too are volunteers on guard — not against Nazi invaders or Venezuelan gangs, but against a White House willing to subvert the Constitution.

Using our voices and our votes, working in alliance with honorable jurists like Fernando Rodriguez, Jr., we’re in a fight for the future of our constitutional republic.