Some Republicans want U.S. District Judge James Boasberg removed from the bench for allegedly interfering with the president’s authority, under the Constitution and the 1798 Alien Enemies Act, to deport members of a Venezuelan gang.
Texas Rep. Brandon Gill and several colleagues introduced articles of impeachment, charging that Boasberg violated his oath of office by “knowingly and willfully” using his “judicial position to advance political gain while interfering with the President’s constitutional prerogatives and enforcement of the rule of law.”
This is ridiculous. For starters, there is zero evidence Boasberg “knowingly and willfully” violated his oath, never mind that he did so in pursuit of “political gain.” Moreover, even if the House managed to pass articles of impeachment against Boasberg, nobody thinks two-thirds of the Senate would vote to convict. At best, this is theater; at worst it’s an attempt to intimidate judges so they stop scrutinizing Donald Trump’s deportation efforts.
And not just deportation. Republicans have introduced articles of impeachment against more than a half-dozen judges for ruling against Trump on a number of fronts.
But the war on Boasberg is the most intense and significant.
A quick recap. The Trump administration deported more than 200 people, most of whom it says—without providing evidence—are part of a Venezuelan gang, delivering them to an El Salvadoran prison. The president claims he has the authority to do so under the 1798 Enemy Aliens Act, which is one of the components of the notorious Alien and Sedition Acts. Indeed, the Enemy Aliens Act is the only component of those laws that hasn’t been repealed or allowed to expire.
“If you’re not troubled by the idea that a president—any president—can simply assert that we’re in a war—without much evidence—and start deporting or imprisoning people, possibly including American citizens, without due process, I question your dedication to the Constitution and even your patriotism.”
The 1798 law says that, “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,” the president can, after a formal proclamation of such an emergency, remove “all natives, citizens, denizens, or subjects of the hostile nation or government” over the age of 14.
On March 15, Trump issued a proclamation asserting that the gang, Tren de Aragua, is a foreign terrorist organization that is “closely aligned with, and indeed has infiltrated, the Maduro regime.”
We aren’t at war with Venezuela under Maduro last I looked, nor do I buy that Tren de Aragua is an invader controlled by a foreign government and is waging war on the U.S. But on the latter, perhaps the administration has better evidence than it has been willing to provide.
For argument’s sake, let’s say the gang meets the criteria of the Enemy Aliens Act. In that case, I have no first order objection to a policy of arresting, imprisoning or deporting proven members of Tren de Aragua.
The key issue is whether a judge can scrutinize the president’s actions under the Enemy Aliens Act (including the arguably crucial question of whether or not the government is deporting who it says it’s deporting). Gill and the Trump administration say no. And any attempt to do so renders Boasberg and any other magistrate a “rogue judge.”
It’s noteworthy that the smartest defenses of the administration do not necessarily contend that what Trump is doing is legal or constitutional. Rather, defenders hold that scrutinizing the president’s action is a “political question.” Under the so-called political question doctrine, there are some issues, particularly pertaining to national security, that are simply not justiciable—that is, the courts rightly stay away from them. For instance, Congress hasn’t issued a formal declaration of war since World War II, but the courts have not ruled that subsequent wars were unconstitutional.
I am very skeptical of the political question defense in this case, but it is not an unserious argument. If Venezuela or any other country launched a surprise attack on the United States, I wouldn’t want the courts to monkey wrench our prompt response.
At the same time, there’s a reason why the Enemy Aliens Act has only been used —and abused—during declared wars. If you’re not troubled by the idea that a president—any president—can simply assert that we’re in a war—without much evidence—and start deporting or imprisoning people, possibly including American citizens, without due process, I question your dedication to the Constitution and even your patriotism.
But that doesn’t automatically mean the judiciary is the right institution to stop him—or empower him. That’s Congress’ job.
Congress doesn’t have to rely on the last surviving relic of a package of laws that were reviled by Jefferson and Madison and discredited. It could write new ones. It could clarify what the president can or can’t do. It could even declare war on Venezuela or Tren de Aragua—that would clear things up in a hurry.
In short, Congress could take its role as the first branch of government seriously.
It’s grotesque constitutional malpractice for legislators to attack judges trying to determine what the Constitution and the law allow while booing from the cheap seats. It’s fine to argue that the judiciary overplays its role as a check on the executive, but I’m grateful for judges when Congress refuses to play any role other than spectator—or heckler.
