Roughly 4,000 illegal immigrants have been deported weekly during the second Trump Administration. The vast majority of deportations have been non-controversial; however, a DC District Court judge started a controversy by attempting to turn around a flight of illegal immigrants associated with a Venezuelan criminal gang being deported by the administration.
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5:45PM: A flight (GlobalX 6145) takes off from Harlingen, TX for San Salvador, El Salvador (per Politico’s Joshua Gerstein post using flightware data)
6:52PM: Judge issues ruling from the bench for the Government to turn around any planes carrying noncitizens subject to the Enemy Aliens Act presidential proclamation.
Judge Boasberg says: “Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.”
Judge Boasberg says: “This is something you need to make sure is complied with immediately.”
These gentlemen came to the US illegally and while here illegally were associated with a notorious criminal gang. Why does Judge Boasberg champion their cause? The appellate court judge upheld this ruling as well, providing this mixed up logic:
“The government’s removal scheme denies Plaintiffs even a gossamer thread of due process,” Millett wrote in a concurring statement. “No notice, no hearing, no opportunity—zero process—to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured and their lives endangered.”
As illegal citizens, why should they have due process under the law? Furthermore, what American community wants their own lives endangered by the return of these gang members?
The Trump administration was criticized for “defying” this order, and not turning the planes around. Should we interpret this as executive defiance of a legitimate judicial order or as judicial overreach?
A Few Perspectives
The judge’s order came an hour after the plane left Texas for El Salvador, so practically speaking it may not have been possible to turn it around at that late hour. This request was not quite as simple as getting off at the next exit and returning home.
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According to DOJ lawyers, the flights carrying the alleged members of Venezuelan gang Tren de Aragua were outside of U.S. airspace when the judge issued his written order, meaning Judge Boasberg lacked the authority to turn the flights around.
From a non-legal, essentially a layman’s, perspective, I ask: Why would a judge issue such an order? What is the compelling reason to bring these illegal immigrants back to the US? Yes, the judiciary should be insulated from political concerns, but they should still make sound decisions. Instead, they are on the absolute fringes of national sentiment.
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An AP-NORC poll, conducted from January 9 to 13 among 1,147 adults, found that 83 percent of Americans support deporting migrants living in the U.S. illegally who have been convicted of a violent crime, while only 6 percent would oppose doing so.
How many political issues in America lose 83% to 6% these days? Furthermore, what is the compelling reason to bring these illegal immigrants back to the US?
More importantly, should a district court judge who has limited jurisdiction to begin with, be allowed to order the president to take such action? The president says this is national security authorized under the Alien Enemies Act. What judicial concern overrides national security? The president is allowed to act to protect national security and to command the military per Article II of the Constitution:
The executive Power shall be vested in a President of the United States of America . . . The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
The judiciary has no right to claim power vested in the president.
Judicial power is enumerated in Article III: the judiciary can adjudicate cases regarding laws of the United States, treaties, maritime jurisdiction, conflicts between states, conflicts between citizens, or conflicts between U.S. states and foreign states, citizens, and subjects. The judiciary is granted no power to decide matters of national security. The courts cannot legitimately determine if the president is allowed to invoke the Aliens Enemies Act, only that it is being correctly applied once invoked.
The judiciary has no role in national security matters. Furthermore, the Alien Enemies Act does not grant due process to aliens the president considers enemies:
That whenever . . . any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, 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 President of the United States may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.
This act gives the judiciary power to enforce the president’s will, but not authority to overrule the president. In this instance, the judiciary is curbing the President’s power. The judiciary’s power itself needs to be curbed.
Except for the Supreme Court, the Congress can create, eliminate, or re-define the jurisdiction of any court (Congress created the lower courts to begin with). Congress, the one branch given the most Constitutional power, can roll back an out-of-control judiciary. They created these courts; they can eliminate them or restrict the courts’ jurisdiction. Now is the time to act.
Only the Supreme Court has jurisdiction nationwide. No lower courts has nationwide jurisdiction. Why does Congress allow them to act as if their jurisdiction is as broad as the Supreme Court’s?
The president won a national election to act as our proxy. An unelected District Court judge whose jurisdiction is limited to Washington DC only, is placing himself on equal footing with the president in this matter (and many other matters as well). There are 700 or so federal district judges, all with jurisdiction in a small geographic area. A great many of them believe they can issue national injunctions to a wide variety of the president’s actions. The Constitution separates the powers between the three branches. When one branch exceeds its power and attempts to take power reversed for one of the other branches, we have a problem.
Right now, Judge Boasberg is the most powerful man in America. He is controlling the national security policy of the United States. victor-davis-hansen-on-levin
This is yet another political coup being played out in real-time. Activists have been successful at shopping around for just the right judges, judges they themselves placed in these outposts for such a contingency. Once a process, such as deportation of illegal aliens, is delayed, the legalities drag on, possibly until the next election. The actions a legitimately elected President Trump promised voters are stopped in mid-stream by a judge serving for life and unaccountable to voters. This is tyranny.
Justice John Roberts don’t like President Trump’s criticisms of the judiciary (Trump suggested Judge Boasberg should be impeached), but who is politicizing the judiciary process: the president or the judiciary itself?
What Kind of Numbers are These?
The judiciary has, at times, thwarted or delayed every president from taking actions, but two-thirds of all injunctions this century were issued during the 4+ years of Trump administrations. Half of all injunctions since President Johnson took office in 1963, a period covering a dozen presidential administrations, were directed against President Trump. Injunctions have rightly been rarely used–except when President Trump is in office.
Democrats argue President Trump’s outrageous and never-seen-before methods (from their perspective) must be stopped, but this appears to be a deliberate tactic to prevent President Trump from executing Constitutionally legal actions. How else do we explain that 92% of injunctions against President Trump were issue by Democrat appointed judges? If President Trump were so far outside the law, why aren’t all judges, regardless of party affiliation, jumping on the bandwagon?
If we allow hearings before every deportation, we might as well have no deportations whatsoever. The large numbers deported each year makes this impractical. But then, thwarting the legitimate exercise of power seems to be the real goal usa-facts-how-many-people-were-deported-from-the-us.
President Biden went in the opposite direction by opening the Southern border and letting in millions unabated. He refused to enforce the immigration laws of the United States.
When confronted, he and others in his administration often acknowledged problems, but blamed Republicans in Congress for not addressing the problem with new legislation. President Trump needed ten minutes to fix the broken border without any legislation whatsoever. Why didn’t one of the 700 District Court judges rule that President Biden must enforce the law? Why does this become controversial only when President Trump begins enforcing the law ignored the past four years?
Treated Worse than the Nazis?
An argument regarding Nazis was used by the Appeals Court judge to justify the decision to pause deportations. Judge Patricia Millet defied logic, claiming Nazis got better treatment under the Alien Enemies Act during World War II:
“There were planeloads of people. There were no procedures in place to notify people,” Millett said. “Nazis got better treatment under the Alien Enemy Act.”
The government is supposed to notify folks before they are arrested, so they can avoid capture? When was that standard introduced?
Secondly, she is making a political argument. Her WWII analogy paints the Trump Administration in a bad light (never has there ever been anyone so bad before, she implies). President Trump is so bad he can’t even afford these illegal aliens the minimal protections Nazis supposedly had in the 1940s. Judge Millet has no clue what the country was like in the 1940s. A law degree doesn’t make her an historical scholar, or even someone with any common sense.
Judge Millet forgot to mention Japanese Americans who were infamously taken from their homes and interred in camps in the United States–and they were legal citizens.
President Franklin D. Roosevelt signed Executive Order 9066 in February 1942 calling for the internment of Japanese-Americans after the attacks on Pearl Harbor.
Treatment of a few dozen Tren de Agagua members, deported to a foreign prison for criminal behavior is more egregious than the national embarrassment of placing Japanese-American citizens in interment camps for years? Go figure.
Of course, the judge’s comments were regarding non-citizen German Nazis treatment. There was no ACLU to push the poor benighted Nazis’ cases forward in 1940s. The entire country was committed to defeating Japan and Germany. It was a sacrifice and a commitment we have never come close to repeating. It was an existential threat we have not seen since. There was hardly an American lawyer left to defend a few Nazis who found themselves in the US. This example from 1942 demonstrates how much due process Nazis actually received:
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During World War II, six German saboteurs who secretly entered the United States on a mission to attack its civil infrastructure are executed by the United States for spying. Two other saboteurs who disclosed the plot to the FBI and aided U.S. authorities in their manhunt for their collaborators were imprisoned.
In 1942, under Nazi leader Adolf Hitler’s orders, the defense branch of the German Military Intelligence Corps initiated a program to infiltrate the United States and destroy industrial plants, bridges, railroads, waterworks, and Jewish-owned department stores. The Nazis hoped that sabotage teams would be able to slip into America at the rate of one or two every six weeks. The first two teams, made up of eight Germans who had all lived in the United States before the war, departed the German submarine base at Lorient, France, in late May.
After a military tribunal convicted them, there was no appellate court to hear their cases. Perhaps Judge Millet was referring instead to the good Nazis who loved baseball and apple pie as much as anyone?
Judge Millet cannot grasp the enormous existential threat the US faced in 1942. Today, folks like her pose interesting legal theories about the legal protections non-citizens should have. We have that luxury today, but Americans had no tolerance for legal protections of alien enemies in 1942.
My father lived through that period and told me what it was like. I doubt Judge Millett could imagine any such environment: Chapter-2-Beast-Barracks
“The war really exacted an incredible toll. Growing up when you did, I think you cannot imagine what it was like . . . For years, all able-bodied men were gone. I mean there were none left. My dad and my older brother were over there. Three of your mother’s brothers were over there. When the war first started, they drafted everyone between the ages of twenty-one and thirty-five, and then later it was everyone between eighteen and forty-five. They went from something like a hundred thousand under arms before Pearl Harbor to something like sixteen million by the end of the war. Nobody except kids like me and old men were left back home . . . I remember when I was sixteen. I worked on the highway construction crew–and they were glad to get us since everyone else was off fighting the war. We made sixty-five cents an hour, as much as the older men. I remember the exact amount. That was big money in those days . . . When I was seventeen, I got a job delivering mail. Did you know that? I was a mail carrier . . .
“There were so many sacrifices made . . . It’s a story that I think hasn’t ever really been told . . . how drastic it was . . . what a huge impact it had on the country . . . on the economy . . . We rationed all sorts of things: gas, sugar, coffee, meat, canned goods . . . shoes and tires had to last as long as possible, because they were made of rubber . . . cigarettes were rationed . . . women’s nylons were rationed because the material was needed for parachutes . . . Did you realize there were no cars made from 1942 until about 1948? The car companies were all making tanks. Everything was geared towards the war . . .
“I remember on our high school football team in 1944, we had two sets of captains because our first set of captains were going to turn eighteen before the end of the season. As soon as they turned eighteen, they were drafted.”
“Didn’t even have a chance to graduate?”
“No. You were drafted on your eighteenth birthday. They needed bodies; there were no exceptions like we had in Vietnam . . . Even all the ball players were gone. They still had games, but all the stars were gone . . .
Judge Millett is attempting to rewrite history. German Nazis were an enemy. They didn’t receive special protections if illegally in the United States. Furthermore, WWII was a period of incredible sacrifice for those who remained behind. American husbands, fathers, brothers, and kids not even graduated from high school, were either killed or separated from their families for several years. The country legitimately contemplated: what happens if the Germans win the war?
Judge Millet and her law clerks need to go to judge school for a year or two (if only such a place existed). They are clearly not qualified to make judgments in the tradition of King Solomon.
The Problem Today
The Supreme Court resolved this particular matter on April 7, vacating Judge Boasberg’s ruling and allowing deportations to continue under the Alien Enemies Act.
The legal problem and balance of power issue remains, however. Democrats continually claim the president has gone so unbelievably far beyond his Constitutional boundaries, but President Trump’s position in this instance was affirmed by the Supreme Court. It’s not so far out-of-bounds, after all. In fact, the administration waited until the Supreme Court to decided, abiding by the lower court judge’s decision and abided by the judge’s order until then.
Instead, we should ask: should the administration have ever been put in this position? Senator John Kennedy highlighted this matter during the recent nomination hearing for Assistant Attorney General Brett Shumate:
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[Senator] Kennedy: “What’s the statutory basis for a federal judge issuing an order that affects people other than the parties before the court?”
“I’m not aware of a statutory basis, Senator,” Shumate admitted.
“There is no statutory basis, is there?” Kennedy reiterated.
“No, Senator,” Shumate confirmed.
Kennedy then challenged Shumate to name a Supreme Court ruling that interprets the Constitution to allow such injunctions.
“Can you name me that case?” he asked.
“I’m not aware of one, Senator,” Shumate responded.
“There isn’t one, is there?” Kennedy pressed.
“I’m not aware of one, Senator,” Shumate repeated.
Kennedy then laid out the fundamental issue: “You have a plaintiff and a defendant, and the plaintiff files a lawsuit in federal court. The judge has jurisdiction over those parties. How can a federal judge issue an order that affects everyone else outside of that courtroom?”
“Uh, it shouldn’t be possible, Senator, but district courts do it all the time,” Shumate admitted. “I think on the theory that courts need to enjoin a federal policy from going into effect, and they often will enjoin it nationwide so that all non-parties are protected.”
The president won in this instance, but what will stop an army of district court judges from overstepping their bounds and thwarting the Trump Administration week after week, case after case? The Supreme Court hears relatively few cases each year; not every overreach can be stopped at their level. Furthermore, one more liberal justice on the court and the president is permanently hamstrung by the lower courts.
The lower courts used flawed legal acumen to put the administration in the corner. Their logic for justifying this decision does not stand up to scrutiny. Their attempt to make a political argument by comparing this action to treatment of Nazis doesn’t hold water either. Their inconsistency in acting now but not acting during a more egregious regime the last four years, is telling as well.
The Congress which established these courts should finally step in and limit the courts’ jurisdiction. Otherwise, judicial tyrants will continue to exceed their authority and disenfranchise the voters who voted for (and still support) policies such as deporting illegal criminals.
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