Judicial Smackdown: Judge Boasberg vs. the Constitution

It’s a tale fit for a thriller novel or action movie: planes on the tarmac waiting to take members of a violent gang to a foreign prison, lawyers rushing to the courthouse to stop them, presidential proclamations, and a judge on a mission to impose his own brand of justice. But this drama isn’t made up—it’s very real, and it’s playing out right now in Washington, D.C.   

Leading the cast is President Donald Trump, who wants to rid the country of a violent gang. The legal backstory for his actions has three parts.

The first is the Constitution, which the Supreme Court has long held gives the president authority over matters involving international relations that exceeds that permitted in domestic matters.  

The second piece is the Alien Enemies Act, enacted in 1798. It authorizes the president to apprehend and remove the natives, citizens, or subjects of a hostile foreign government if that government attempts or threatens an “invasion or predatory incursion” against the U.S. 

Third, the Immigration and Nationality Act authorizes the secretary of state to designate as Foreign Terrorist Organizations, or FTOs, groups that engage in terrorist activity and threaten the safety of Americans or the United States.  

With that in mind, let’s turn to the unfolding drama.

On Feb. 20, the State Department designated eight transnational gangs and cartels as FTOs, including Tren de Aragua, or TdA, a criminal organization that began as a prison gang in Venezuela in 2010. 

On Mar. 14, Trump made the proclamation required by the Alien Enemies Act, emphasizing TdA’s connection with Venezuelan president Nicolas Maduro and his “regime-sponsored, narco-terrorism enterprise.” TdA, the proclamation explained, “commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking.” 

The Trump administration moved quickly to act on this proclamation, apprehending dozens of suspected TdA members and detaining them at a facility in Texas. The plan was to deport them on Mar. 15 and transfer physical custody to officials in El Salvador who had agreed to house them.

Enter the lawyers, who filed a lawsuit at 1:12 a.m. on Mar. 15 to block the removal of any suspected TdA members.

They asked for two things from Chief Judge James Boasberg of the U.S. District Court for the District of Columbia, who had been assigned the case. They wanted a writ of habeas corpus releasing the five detainee plaintiffs. More broadly, they sought the certification of a class (for the purpose of maintaining the lawsuit as a class action) consisting of all individuals, anywhere in the country, covered under the proclamation—and an order protecting all such individuals from removal.

At 9:40 a.m., Judge Boasberg issued a temporary restraining order barring removal of the five named plaintiffs, and they remained in the country. But here’s where the drama heats up.

Later that day, between 5:25 and 5:45 p.m., two flights with a total of 137 suspected TdA members left Texas, bound first for Honduras and then El Salvador. At 7:25 p.m., Boasberg certified a class of all individuals covered by the proclamation and issued a TRO prohibiting the government from “removing” them for 14 days. On Mar. 28, he extended that order for another 14 days. 

The Supreme Court stepped in on Apr. 7, vacating both of Boasberg’s Mar. 15 TROs. A writ of habeas corpus, the court said, must be sought in the jurisdiction where the plaintiff is being detained. In this case, that would be Texas.

The real fireworks were over the meaning of just one word in Boasberg’s second TRO: “removing.”

The government said that “removing” meant expelling the detainees from U.S. territory, which occurred before Boasberg issued his TRO. Boasberg, however, claimed that “removing” meant actually relinquishing custody to a foreign sovereign, which did not occur until after his order had been issued. Under Boasberg’s reading, the government had violated his TRO.

But he wasn’t finished. On Apr. 16, he issued yet another order claiming probable cause for criminal contempt for the government’s “willful disobedience” of the TRO. Boasberg’s shocking ultimatum to the executive branch was this: Return the deportees to U.S. soil or identify the officials who ordered the deportation so they could be prosecuted. He set a hard deadline of Apr. 23.

But wait—hadn’t the Supreme Court already vacate Boasberg’s TRO? How can someone disobey an order that, in effect, Boasberg had no authority to issue?

Boasberg surely knew what was coming because his contempt order came with an opinion accusing the Supreme Court of enabling all sorts of horrors: secretly loading people onto planes, keeping many in the dark about their destination, and racing to “spirit them away before they could invoke their due-process rights.” But a selective repetition of some facts is no substitute for a legal argument.

For that, the government turned to the U.S. Court of Appeals for the D.C. Circuit, which has appellate authority over Boasberg. Judges Gregory Katsas and Neomi Rao sided with the government, vacating Boasberg’s contempt order, while Judge Cornelia Pillard dissented.

Beyond that result, however, separate opinions by Katsas and Rao explained how far Boasberg had strayed from his role as a judge in his decisions.

Rao, for example, forcefully outlined how Boasberg, not Trump, had exceeded his authority in this drama. Boasberg, Rao wrote, was acting less like a district judge and more like a foreign diplomat by attempting to influence how the Trump administration conducted foreign affairs. Simply put, “[t]he district court’s order intrudes upon the powers committed to the Executive Branch.”   

Rao wasn’t finished.

“This case is highly unusual, and I have found no other like it, perhaps because no district court has threatened criminal contempt against Executive Branch officials as a backdoor to coercing compliance with an order that has been vacated by the Supreme Court.” She described Boasberg’s ultimatum of returning migrants or naming officials as “untenable” and described the order as “coercive.”   

Under normal circumstances, an appeals court’s disagreement with a lower court usually means a reversal. However, this high-stakes legal drama can only be described as a series of judicial smackdowns. A federal judge attempting to manipulate how the president exercises power the Constitution gives only to him requires a special kind of arrogance.

But this saga may not be over. Time will tell if Boasberg comes to his senses, gets off his high-horse, and stays in his judicial lane where he belongs.

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