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Supreme Court faces Guantanamo test again: Does president's power have limits?

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Supreme Court faces Guantanamo test again: Does president's power have limits?

Two decades ago, the Bush administration said its “war on terror” prisoners held at Guantanamo Bay were off-limits to the federal courts, but the Supreme Court disagreed.

“A state of war is not a blank check for the President,” said Justice Sandra Day O’Connor in 2004. “Whatever power the U.S. Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations…, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

Only Justice Clarence Thomas dissented.

That issue is now back before the Supreme Court.

Although the nation is not at war, President Trump has invoked his war powers under the Alien Enemies Act of 1798 to round up and deport to El Salvador about 200 alleged members of a Venezuelan crime gang.

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Two legal questions arose immediately.

How can Trump rely on the 1798 law, which applies only when Congress has “declared war” or a “foreign government” has launched an “invasion”?

And how does the government know all these men are gang members? Their families said they have no criminal records, and in some instances, fled Venezuela and sought asylum to escape the gangs.

So far, however, the legal fight has focused on the same big question from the Guantanamo era: Do federal judges have the authority to limit the power of the president who says he is protecting the nation from “dangerous aliens”?

On Friday, Trump’s acting solicitor general Sarah Harris urged the Supreme Court to set aside the judge’s order that put a temporary pause on further deportations.

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“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country — the President…or the Judiciary,” she wrote in her appeal. “The Constitution supplies a clear answer: the President. The republic cannot afford a different choice.”

The justices asked for a response from the American Civil Liberties Union by Tuesday. The fast-moving case poses an early test of whether the high court will uphold the president’s power to swiftly deport migrants without interference from judges.

Two weeks ago, Trump signed a proclamation that Tren De Araqua, a Venezuelan crime gang, was “perpetrating…an invasion” of the United States and ordering the “prompt removal” of all those who were held.

On the afternoon of Saturday, March 15, U.S. District Judge James Boasberg convened a hastily arranged hearing in response to an emergency lawsuit brought on behalf of five Venezuelan men who feared they would be deported to El Salvador.

At the same hour, administration officials were arranging for three planes to take off from Texas.

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The judge questioned how the 1798 law could authorize such deportations, and “to preserve the status quo,” he ordered a temporary pause on all the deportations.

Although the five named plaintiffs stayed in Texas, the administration essentially ignored the broader order and allowed the three flights to proceed as planned.

Although the judge said he was troubled his orders were ignored, Trump’s lawyers were troubled by his intervention.

“These orders are an affront to the President’s broad constitutional and statutory authority to protect the United States from dangerous aliens who pose grave threats to the American people,” they said on behalf of Atty. Gen. Pam Bondi.

“The presidential actions they challenge are not subject to judicial review,” they said.

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“The Constitution simply provides no basis for … no basis for second-guessing the policy judgment by the Executive that such an ‘invasion’ is occurring,” they said. The president “has an inherent authority to conduct foreign affairs and address national security risks.”

They took a hard line and refused to even disclose the flight times for airplanes that flew to El Salvador.

That’s a “state secret,” they said in a brief filed on Monday.

Veterans of the legal battles over Guantanamo see some similarities but differences as well.

UC Berkeley Law professor John Yoo, a former Bush administration attorney, said the Guantanamo prisoners were not brought into the United States.

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“Here, there is no doubt that the Venezuelans sent to El Salvador were detained within the United States,” he said.

In the past, the Supreme Court has said people who are being held in this country, including noncitizens, have a right to due process of law.

Yoo said, “Trump is invoking the same arguments we made after 9/11 that the capture and detention of enemy prisoners during wartime fell exclusively within the President’s authority as Commander-in-Chief to conduct war.” He is also “making similar arguments as to why federal judges today should defer to the decisions of the executive branch during what he has determined is an invasion.”

But Yoo said he doubts the courts will uphold Trump’s reliance on the 1798 law.

Earlier this week, Boasberg explained his order was narrow in scope as well as temporary. It would not lead to the release any of the Venezuelans that are being held, and it does not prevent the government from deporting those who have a “final order of removal” under the U.S. immigration laws, he said. It prevents only deportations to El Salvador that are based on the disputed Alien Enemies Act.

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It also resolved nothing about the plight of those who are now held in El Salvador.

On Monday, Trump’s lawyers asked the D.C. Circuit Court of Appeals to throw out Boasberg’s order but lost in a 2-1 decision.

Each of the judges wrote a lengthy opinion making a separate point.

Judge Karen Henderson, an appointee of President George H.W. Bush, disputed the use of the Alien Enemies Act. “An invasion is a military act, not one of migration,” she said.

Judge Patricia Millett, an appointee of President Obama, said the detained men deserve a hearing to challenge the claim they were gang members.

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Judge Justin Walker, a Trump appointee, dissented but said the detained men could file a habeas corpus claim in Texas where they are held.

ACLU attorney Lee Gelernt, who brought the lawsuit, said the decision preserving the judge’s order “means that hundreds of individuals remain protected from being sent to a notorious black-hole prison in a foreign country, without any due process whatsoever — perhaps for the rest of their lives.”

Skye Perryman, president of Democracy Forward, called the D.C. Circuit’s decision “an important step for due process and the protection of the American people. President Trump is bound by the laws of this nation, and those laws do not permit him to use wartime powers when the United States is not at war and has not been invaded.”

In her appeal on Friday, Harris, the acting solicitor general, agreed with Walker that the Venezuelans held in Texas could file a writ of habeas corpus there.

ACLU attorneys and Millett dismissed that option as impractical. The hundreds of men who were held had no lawyers, they said, and no way to know they must file an individual legal claim in federal court.

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Trump admin sues Illinois Gov. Pritzker over laws shielding migrants from courthouse arrests

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Trump admin sues Illinois Gov. Pritzker over laws shielding migrants from courthouse arrests

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The U.S. Justice Department filed a lawsuit against Illinois Gov. JB Pritzker over new laws that aim to protect migrants from arrest at key locations, including courthouses, hospitals and day cares.

The lawsuit was filed on Monday, arguing that the new protective measures prohibiting immigration agents from detaining migrants going about daily business at specific locations are unconstitutional and “threaten the safety of federal officers,” the DOJ said in a statement.

The governor signed laws earlier this month that ban civil arrests at and around courthouses across the state. The measures also require hospitals, day care centers and public universities to have procedures in place for addressing civil immigration operations and protecting personal information.

The laws, which took effect immediately, also provide legal steps for people whose constitutional rights were violated during the federal immigration raids in the Chicago area, including $10,000 in damages for a person unlawfully arrested while attempting to attend a court proceeding.

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PRITZKER SIGNS BILL TO FURTHER SHIELD ILLEGAL IMMIGRANTS IN ILLINOIS FROM DEPORTATIONS

The Trump administration filed a lawsuit against Illinois Gov. JB Pritzker over new laws that aim to protect migrants from arrest at key locations. (Getty Images)

Pritzker, a Democrat, has led the fight against the Trump administration’s immigration crackdown in Illinois, particularly over the indiscriminate and sometimes violent nature in which they are detained.

But the governor’s office reaffirmed that he is not against arresting illegal migrants who commit violent crimes.

“However, the Trump administration’s masked agents are not targeting the ‘worst of the worst’ — they are harassing and detaining law-abiding U.S. citizens and Black and brown people at daycares, hospitals and courthouses,” spokesperson Jillian Kaehler said in a statement.

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Earlier this year, the federal government reversed a Biden administration policy prohibiting immigration arrests in sensitive locations such as hospitals, schools and churches.

The U.S. Immigration and Customs Enforcement’s “Operation Midway Blitz,” which began in September in the Chicago area but appears to have since largely wound down for now, led to more than 4,000 arrests. But data on people arrested from early September through mid-October showed only 15% had criminal records, with the vast majority of offenses being traffic violations, misdemeanors or nonviolent felonies.

Gov. JB Pritzker has led the fight against the Trump administration’s immigration crackdown in Illinois. (Kamil Krazaczynski/AFP via Getty Images)

Immigration and legal advocates have praised the new laws protecting migrants in Illinois, saying many immigrants were avoiding courthouses, hospitals and schools out of fear of arrest amid the president’s mass deportation agenda.

The laws are “a brave choice” in opposing ICE and U.S. Customs and Border Protection, according to Lawrence Benito, executive director of the Illinois Coalition for Immigrant and Refugee Rights.

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“Our collective resistance to ICE and CBP’s violent attacks on our communities goes beyond community-led rapid response — it includes legislative solutions as well,” he said.

The DOJ claims Pritzker and state Attorney General Kwame Raoul, also a Democrat, violated the U.S. Constitution’s Supremacy Clause, which establishes that federal law is the “supreme Law of the Land.”

ILLINOIS LAWMAKERS PASS BILL BANNING ICE IMMIGRATION ARRESTS NEAR COURTHOUSES

Border Patrol Commander Gregory Bovino leaves the Dirksen U.S. Courthouse in Chicago. (Brian Cassella/Chicago Tribune/Tribune News Service via Getty Images)

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Raoul and his staff are reviewing the DOJ’s complaint.

“This new law reflects our belief that no one is above the law, regardless of their position or authority,” Pritzker’s office said. “Unlike the Trump administration, Illinois is protecting constitutional rights in our state.”

The lawsuit is part of an initiative by U.S. Attorney General Pam Bondi to block state and local laws the DOJ argues impede federal immigration operations, as other states have also made efforts to protect migrants against federal raids at sensitive locations.

The Associated Press contributed to this report.

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Supreme Court rules against Trump, bars National Guard deployment in Chicago

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Supreme Court rules against Trump, bars National Guard deployment in Chicago

The Supreme Court ruled against President Trump on Tuesday and said he did not have legal authority to deploy the National Guard in Chicago to protect federal immigration agents.

Acting on a 6-3 vote, the justices denied Trump’s appeal and upheld orders from a federal district judge and the U.S. 7th Circuit Court of Appeals that said the president had exaggerated the threat and overstepped his authority.

The decision is a major defeat for Trump and his broad claim that he had the power to deploy militia troops in U.S. cities.

In an unsigned order, the court said the Militia Act allows the president to deploy the National Guard only if the regular U.S. armed forces were unable to quell violence.

The law dating to 1903 says the president may call up and deploy the National Guard if he faces the threat of an invasion or a rebellion or is “unable with the regular forces to execute the laws of the United States.”

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That phrase turned out to be crucial.

Trump’s lawyers assumed it referred to the police and federal agents. But after taking a close look, the justices concluded it referred to the regular U.S. military, not civilian law enforcement or the National Guard.

“To call the Guard into active federal service under the [Militia Act], the President must be ‘unable’ with the regular military ‘to execute the laws of the United States,’” the court said in Trump vs. Illinois.

That standard will rarely be met, the court added.

“Under the Posse Comitatus Act, the military is prohibited from execut[ing] the laws except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,” the court said. “So before the President can federalize the Guard … he likely must have statutory or constitutional authority to execute the laws with the regular military and must be ‘unable’ with those forces to perform that function.

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“At this preliminary stage, the Government has failed to identify a source of authority that would allow the military to execute the laws in Illinois,” the court said.

Although the court was acting on an emergency appeal, its decision is a significant defeat for Trump and is not likely to be reversed on appeal. Often, the court issues one-sentence emergency orders. But in this case, the justices wrote a three-page opinion to spell out the law and limit the president’s authority.

Justice Amy Coney Barrett, who oversees appeals from Illinois, and Chief Justice John G. Roberts Jr. cast the deciding votes. Justice Brett M. Kavanaugh agreed with the outcome, but said he preferred a narrow and more limited ruling.

Conservative Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.

Alito, in dissent, said the “court fails to explain why the President’s inherent constitutional authority to protect federal officers and property is not sufficient to justify the use of National Guard members in the relevant area for precisely that purpose.”

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California Gov. Gavin Newsom and Atty. Gen. Rob Bonta filed a brief in the Chicago case that warned of the danger of the president using the military in American cities.

“Today, Americans can breathe a huge sigh of relief,” Bonta said Tuesday. “While this is not necessarily the end of the road, it is a significant, deeply gratifying step in the right direction. We plan to ask the lower courts to reach the same result in our cases — and we are hopeful they will do so quickly.”

The U.S. 9th Circuit Court of Appeals had allowed the deployments in Los Angeles and Portland, Ore., after ruling that judges must defer to the president.

But U.S. District Judge Charles Breyer ruled Dec. 10 that the federalized National Guard troops in Los Angeles must be returned to Newsom’s control.

Trump’s lawyers had not claimed in their appeal that the president had the authority to deploy the military for ordinary law enforcement in the city. Instead, they said the Guard troops would be deployed “to protect federal officers and federal property.”

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The two sides in the Chicago case, like in Portland, told dramatically different stories about the circumstances leading to Trump’s order.

Democratic officials in Illinois said small groups of protesters objected to the aggressive enforcement tactics used by federal immigration agents. They said police were able to contain the protests, clear the entrances and prevent violence.

By contrast, administration officials described repeated instances of disruption, confrontation and violence in Chicago. They said immigration agents were harassed and blocked from doing their jobs, and they needed the protection the National Guard could supply.

Trump Solicitor Gen. D. John Sauer said the president had the authority to deploy the Guard if agents could not enforce the immigration laws.

“Confronted with intolerable risks of harm to federal agents and coordinated, violent opposition to the enforcement of federal law,” Trump called up the National Guard “to defend federal personnel, property, and functions in the face of ongoing violence,” Sauer told the court in an emergency appeal filed in mid-October.

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Illinois state lawyers disputed the administration’s account.

“The evidence shows that federal facilities in Illinois remain open, the individuals who have violated the law by attacking federal authorities have been arrested, and enforcement of immigration law in Illinois has only increased in recent weeks,” state Solicitor Gen. Jane Elinor Notz said in response to the administration’s appeal.

The Constitution gives Congress the power “to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.”

But on Oct. 29, the justices asked both sides to explain what the law meant when it referred to the “regular forces.”

Until then, both sides had assumed it referred to federal agents and police, not the standing U.S. armed forces.

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A few days before, Georgetown law professor and former Justice Department lawyer Martin Lederman had filed a friend-of-the-court brief asserting that the “regular forces” cited in the 1903 law were the standing U.S. Army.

His brief prompted the court to ask both sides to explain their view of the disputed provision.

Trump’s lawyers stuck to their position. They said the law referred to the “civilian forces that regularly execute the laws,” not the standing army.

If those civilians cannot enforce the law, “there is a strong tradition in this country of favoring the use” of the National Guard, not the standing military, to quell domestic disturbances, they said.

State attorneys for Illinois said the “regular forces” are the “full-time, professional military.” And they said the president could not “even plausibly argue” that the U.S. Guard members were needed to enforce the law in Chicago.

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Video: Trump Announces Construction of New Warships

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Video: Trump Announces Construction of New Warships

new video loaded: Trump Announces Construction of New Warships

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Trump Announces Construction of New Warships

President Trump announced on Monday the construction of new warships for the U.S. Navy he called a “golden fleet.” Navy officials said the vessels would notionally have the ability to launch hypersonic and nuclear-armed cruise missiles.

We’re calling it the golden fleet, that we’re building for the United States Navy. As you know, we’re desperately in need of ships. Our ships are, some of them have gotten old and tired and obsolete, and we’re going to go the exact opposite direction. They’ll help maintain American military supremacy, revive the American shipbuilding industry, and inspire fear in America’s enemies all over the world. We want respect.

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President Trump announced on Monday the construction of new warships for the U.S. Navy he called a “golden fleet.” Navy officials said the vessels would notionally have the ability to launch hypersonic and nuclear-armed cruise missiles.

By Nailah Morgan

December 23, 2025

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