The disagreement between President Trump and federal district judge James Boasberg over the President’s directing of the summary deportation to El Salvador of approximately 300 illegal Venezuelans certainly involves some significant legal issues requiring authoritative clarification, perhaps ultimately by the United States Supreme Court.
And one of those issues could conceivably be the legality of an impeachment of Judge Boasberg as called for by President Trump, over his ordering a pause in the deportations of the Venezuelans. President Trump claims that Judge Boasberg is being driven by a radical leftist ideology and is usurping presidential authority in “high crimes and misdemeanors” mode. Indeed, several members of Congress have already introduced articles of impeachment and more will reportedly soon be submitting their own versions. Should they be pursued and in the highly unlikely event that they succeed, Supreme Court review may be in the offing.
But at this point, without any such impeachment issue yet before the high court, there should be no doubt that it was ill-advised for U.S. Chief Justice John Roberts to have intervened, as he did last week, with a public statement declaring that an impeachment would be improper: “For more than two centuries it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
And therein lies an important tale.
Judges taking sides in disputes over matters of public moment without an official duty to do so, ineluctably feeds the perception – now held by many – of pervasive judicial partisanship and lack of even-handedness. And this is especially worrisome, when as here, Judge Boasberg’s core problem with the deportations will likely make its way to the Supreme Court.
President Trump is claiming the right to deport individuals merely believed to be members of Venezuela’s notorious Tren de Aragua gang. Neither due process immigration hearings are provided nor are prior convictions required predicates. On the other hand, Judge Boasberg says he is not so sure and wants to take some time to satisfy himself as to whether or not the deportees are entitled to due process after all.
President Trump’s position is that the usual due process rules do not apply by virtue of the Alien Enemies Act of 1798 – part of the Alien and Sedition Acts – which generally allow deportations without due process. But this is a controversial argument in the current context and will likely reach the U.S. Supreme Court for resolution.
Thus, the relevant part of the Alien Enemies Act reads as follows:
Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government… all natives, citizens, denizens or subjects of the hostile nation or government… who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed as alien enemies.
The last sentence quoted above has been interpreted to mean the usual rules of due process are suspended and a president has unlimited authority to deport people under certain circumstances. But there is no “declared war” and although an obvious predatory incursion continues in play, it was not, on its face, seem to have been “perpetrated” by a “nation or government.”
The Trump administration argues, however, that the Tren de Aragua and other foreign gangs operating here were typically encouraged by their native governments to migrate and effectively serve as their local arm.
So, are we faced with a question of legalistic statutory interpretation or political responsibility? That is, the President is responsible for national security but would necessarily be undermined in terms of timely expelling those threatening that security.
Writ large, given the rapid, massive changes President Trump is making and the apparent resolve of Democrats to use the courts to thwart him at every turn, this clash looms large – especially when there are so many judges in ideological sync with the thinking of the Democratic Party left. And in analytical terms, it implicates the question of whether the legal of our three branches of government will effectively make decisions that the Constitution assigned to the political ones.
So, yes. Just as Chief Justice Roberts said, appellate courts are indeed around to review errant lower court decisions on government operations. But the appellate process is a long and laborious one and its judges often come from the same ideological pool as their lower court colleagues. And if President Trump is right about the ideology thing as the driving force for judges it many times seems to be, that would be a heck of a way to run a country.
