Beyond the fact that U.S. District Judge James E. Boasberg is, without doubt, a Hollywood casting director’s spot-on image of what an undertaker should look like, the judge is pushing the limits of judicial authority in issuing a temporary restraining order halting the government’s deportation of Venezuelan Tren de Aragua members.
On March 15, President Trump released a proclamation declaring that the Venezuelan criminal gang known as Tren de Aragua “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States” and “undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”
Trump based his action on the 1798 Alien Enemies Act, which gives the president authority to remove foreign nationals over the age of 14 (criminals or not), at a time of a declared war or whenever “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.”
Trump has argued that the Maduro government has purposely dispatched an army of Tren de Aragua members to terrorize and create havoc in the United States. Dozens of murders, rapes, and other criminal activities by the gang would seem to confirm that assertion.
As a result, more than 250 Tren de Aragua members were rounded up and put on planes bound for a mega-prison in El Salvador constructed expressly for MS-13 and other gang members.
Lawsuits quickly followed—one by the leftist American Civil Liberties Union on behalf of five Venezuelan nationals.
Legal scholars argue that the outcome of the deportation case may hinge on the legal interpretation of “predatory incursion.”
Without a doubt, the various lawsuits and Judge Boasberg’s ruling will wind up in the Supreme Court. But perhaps most significantly, as far as this legal battle is concerned, is the fact that there appears to be some legal precedent for President Trump’s deportation order.
On July 14, 1945, not long after Germany’s surrender in World War II, President Harry Truman directed the removal of all alien enemies “deemed by the Attorney General to be dangerous” to public safety. On Jan. 18, 1946, German national Karl Ludecke, designated an “alien enemy,” was ordered removed from the United States.
Ludecke sued, arguing that the “declared war” was over and the Alien Enemies Act should not apply.
The Supreme Court disagreed.
“Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise,” the Court said. “We hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it — on the President of the United States.”
While there is certainly no “declared war” with Venezuela, there is that “other” condition that can reinforce and justify using the Alien Enemies Act—the one that refers to “any invasion or predatory incursion” by “any foreign nation or government.”
The question isn’t only whether those critical phrases apply to the Tren de Aragua deportees but also whether any judge or court has the authority to say they don’t.
Former Supreme Court Justice Sandra Day O’Connor once posited that, “The proper role of the judiciary is one of interpreting and applying the law, not making it.”
Round one in the legal battle went to Boasberg. A federal appeals court refused last week to lift his order barring the Trump administration from deporting Venezuelan migrants to El Salvador.
The next round will be a House Judiciary Committee hearing today (April 2) regarding Judge Boasberg, focusing on what Trump supporters describe as “judicial overreach” and an alleged attempt by a biased district court judge to strip a president of his constitutional powers regarding national security.
In addition to the hearing, Judiciary Committee Chair Jim Jordan said he expects House Republican leadership to move forward with a bill from California Rep. Darrell Issa aimed at limiting judges’ power to issue nationwide injunctions. Issa’s bill — entitled the “No Rogue Rulings Act” — would put restrictions on federal judges issuing orders providing injunctive relief that impacts the entire country outside their districts.
Former Supreme Court Justice Byron White seems to have hit the nail on the head when he once said, “The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. There should, therefore, be great resistance to redefining the category of rights deemed fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.”
Boasberg appears undeterred by the political uproar he has sparked. Last Friday, he doubled down by extending the existing restraining order on the deportation flights until April 12, “or until further order of the Court.” The original restraining order was set to expire on March 29.
There is little doubt that the legal dispute is headed to the Supreme Court.
Until that happens, it’s up to the American people to determine for themselves the validity of the president’s assertions and actions.
For example, was there an “invasion or predatory incursion” by Tren de Aragua, and does it have ties to the Venezuelan government? How do we know the detained Venezuelans are members of TdA? Why were they transported to a prison in El Salvador?
The answers to those questions seem straightforward.
The criminal migrants were sent to El Salvador because Venezuela wouldn’t accept them, and President Trump, using his authority under the Alien Enemies Act, refused to allow them to remain in the United States.
According to Border Czar Tom Homan, the federal government knows the Venezuelans are TdA members “based on numerous criminal investigations and intelligence reports, as well as a lot of work by ICE officers.”
Founding Father Thomas Jefferson once said, “The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”
Judge Boasberg is doing precisely that and more. He has turned The Constitution into silly putty.
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