I suppose one of the prisoners might have standing to sue, though it’s hard to imagine why one would.
Just so you know, the only reason I can imagine, in extremity of distress, casting a vote for Trump is to throw this business back in your face… holding aloft my bloody severed nose and screaming, “Ha! Face, take that!”
A President Rubio, on the other hand, would make responding to this near unmitigated bliss.
Little Nemo, in post 17, might well be right in that most all of Republicans would secretly be relieved that the whole mess was over. I brought up impeachment simply as a way of avoiding the issue of standing. It probably would have been a real option 5 or 6 years ago, but at this point, maybe not.
To answer the OP:
(1) The President does have the power under the Constitution.
(2) Because he either has Art II power to do the act, and the statute would be be unconstitutional derogation of that power; or if he doesn’t, but no one has standing under Art III.
First they came for Gitmo, then New Mexico and Arizona, then Louisiania …
I imagine that Congress has specifically legislated funds to maintain Gitmo in the Defense Department’s appropriations, so closing Gitmo would be an unconstitutional impoundment. Standing might again be an issue, although if DOD uses any contractors at the base, they would have probably have standing to sue.
Similarly, if DOD uses contractors for the day-to-day upkeep of the prisoners in Gitmo, those contractors might have standing to sue if the prisoners were to be moved.
Um, well, the inmates themselves would probably have standing to sue for being detained without trial or other due process, presuming they weren’t already tried in the military tribunals.
They have that standing now, and have litigated those issues using habeas corpus.
Yeah, which is why I don’t get your question.
The question is who would have standing to challenge the transfer. That requires an injury traceable to the transfer. What injury would a detainee have that is caused by being transferred?
Maybe conditions in Gitmo are nicer than federal prison in the US?
If Obama did order the closing of the base and he didn’t explicitly defy Congress by ordering the prisoners Stateside, what would likely happen with them?
That’s interesting.
I guess then the question would be what their cause of action is.
Military detention elsewhere, I would guess. Navy vessels?
I would have thought the statute also forbid closing the base, but I haven’t read it.
Ah, I see.
I think the inmates would have standing. They could claim an injury, and lose, but that doesn’t mean they don’t have standing. They’re the ones affected, and anything that affects them is subject to a lawsuit.
I think you’re asking if they would oppose the transfer, and why.
The difference is that once they’re in the territories of the United States, they have full access to the federal courts, which I would expect would include the power to seek a federal court order barring their removal from the country without due process.
The President can’t deport people by executive fiat.
No, their claim of an injury would be scrutinized before the suit proceeds if there is a challenge to their standing.
It’s more complicated than you might think. Even if transferred here, they might not necessarily be considered admitted into the country for due process purposes. Nor is it clear whether they would have greater due process rights than they do now based on Boumediene et al.
IANAL, but that would seem to me an overstep of their authority. The commander in chief isn’t allowed to cancel a lease? Regardless, I certainty haven’t seen the base’s continued existence mentioned in any news story, only the prison.
I suppose the states designated to receive the prisoners might have standing (under the theory from the EPA case and the recent immigration litigation), if the presence of those prisoners could constitute an injury.
Perhaps some form of breach of contract, although it occurs to me that their contracts probably have some sort of termination-for-convenience clause.
So far I believe all the transfers have been to other countries. There were about 245 when Obama took office and now fewer than 100 are left at Gitmo. About a third of those remaining have also been approved for release.
The article says Congress has forbidden transfers to the USA or to Yemen, but those are the only two countries mentioned.