Did President Trump ignore an order from U.S. District Court Judge James Boasberg in Washington, D.C., to halt the deportation of hundreds of alleged terrorists and gang members this weekend? No.
Would it have been constitutional if he had? Yes.
For too long, we have accepted without question the fallacious notion that the federal judiciary has the exclusive power of constitutional interpretation, and that the states and the other branches of the federal government are bound to accept whatever the courts decide. This myth of “judicial supremacy” has thrown the constitutional system devised by our Founders out of balance, and it needs to be rejected.
The current case, which concerns whether a federal judge can prevent the removal of foreigners whom the Executive Branch has determined are part of a terrorist organization, is the perfect opportunity to reassert the Founders’ view of the power of constitutional interpretation — a view that was shared, and acted upon, by presidents Andrew Jackson and Abraham Lincoln. It now seems the Trump administration is reviving this long-lost view, and it’s about time.
Here’s what happened. Over the weekend, the Department of Homeland Security deported scores of alleged members of the violent Venezuelan gang Tren de Aragua, which the Trump administration designated a terrorist organization in January. On Saturday, Trump invoked the Alien Enemies Act (AEA) and declared an “invasion” by members of Tren de Aragua, ordering their immediate removal in accordance with the AEA. They were arrested, along with other alleged gang members in the country illegally, and flown to El Salvador, where El Salvador President Nayib Bukele has agreed to imprison them on behalf of the United States.
Judge Boasberg, a virulently anti-Trump judge with a long history of questionable judicial activism, acting on a request from the ACLU and the Marc Elias-led lawfare firm Democracy Forward, issued a temporary restraining order in hopes of stopping the deportations. There was no hearing, just a blunt command from Boasberg to halt these deportations for two weeks and prepare for a hearing — as if Executive Branch policy, even on sensitive matters of national security, can simply be dictated by an inferior court judge.
Unfortunately for Boasberg and the ACLU, two of the deportation flights had already taken off and were outside U.S. territory by the time the judge’s written order was issued on Saturday evening. (A third flight departed later that night but it carried foreign nationals that were deported on grounds other than Trump’s designation of Tren de Aragua as a terrorist organization, so Boasberg’s order was irrelevant.)
Hellbound and Down 