I’m glad you appear to be backing away from your core claim that the ruling is the equivalent of saying the internment of Japanese-Americans was OK, and I assume you’ll change the title and that line of criticism in a revised post.

Now that you appear to have narrowed your criticism to dictum on p. 78 of a 99-page District Court opinion with a precedential value of zero, I’m going to bed.

This is no “slur” on Judge Gleeson, incidentally. It is absolutely a criticism of his opinion. But there’s not a personal word about the judge himself in my post.

In my view, it is Judge Gleeson who should retract or tone down that portion of his opinion–admittedly dictum–in which he suggests an essentially unreviewable power to detain non-citizens indefinitely. (And that is the distinction he emphasizes — the distinction between “citizens” and “aliens” — in his disquisition on government power and judicial review. Not a distinction between legal and illegal aliens.

This is irresponsible language in an opinion on a matter of such importance. Judge Gleeson would have been well advised to write narrowly here, rather than writing in a way so broad that it endorses the wartime internment of Japanese aliens.

If you want to argue with his equal protection analysis, go ahead. But the Japanese internment analogy fails. All the plaintiffs here are illegal aliens, and the detention is based on their undisputed illegal conduct. Were the people of Japanese ancestry detained for immigration violations? And if this is such a clear historical precedent, why didn’t the plaintiffs mention it in their brief?

Unless you have an answer for this, I assume you’ll retract or tone down the post. It’s a careless and “dismissive” slur towards a thoughtful opinion and a judge who’s written a lot of pro-immigrant opinions over the years, including in this very set of cases.

I know you’ve done a lot of terrific work on the Japanese internments, but the shoe just doesn’t fit here.

There is thus nothing outrageous about the plaintiffs’ claim of national-origin discrimination in this context; the executive is free to single out “nationals of a particular country” and “focus[]” enforcement efforts on them. Id. This is, of course, an extraordinarily rough and overbroad sort of distinction of which, if applied to citizens, our courts would be highly suspicious. Yet the Supreme Court has repeatedly held that the political branches, “[i]n the exercise of [their] broad power over naturalization and immigration … regularly make[] rules that would be unacceptable if applied to citizens.” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); compare, e.g,, Fiallo v. Bell, 430 U.S. 787 (1977) (upholding law denying illegitimate child fathered by American citizen the immigration privilege afforded to a legitimate child), with Moore v. City of East Cleveland, 431 U.S. 494 (1977) (striking down housing ordinance limiting occupancy of a dwelling to a single family and defining a single family to preclude grandmother from having grandson live with her). Indeed, “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952). “Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Id. at 589.