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President Trump issued a Proclamation on March 15th invoking the authority granted to presidents under the 1798 Alien Enemies Act to remove suspected members of the Venezuelan criminal gang Tren de Aragua (TdA) summarily from the United States. The Trump administration had previously designated TdA as a Foreign Terrorist Organization in accordance with the Immigration and Nationality Act (INA), as amended (8 USC §1189).
However, an unelected progressive lower court federal judge has taken it upon himself to block President Trump’s lawful exercise of his executive powers pursuant to the Alien Enemies Act. Judge James E. Boasberg, a U.S. District Court judge in the District of Columbia, has been issuing nationwide injunctive orders that grossly overstep the bounds of his judicial authority in violation of the separation of powers. This activist progressive judge would rather interfere with the removal from the U.S. of illegal immigrants suspected of committing heinous crimes than protect the security of the American people.
The Alien Enemies Act that President Trump has lawfully invoked is still the law of the land. It grants presidents with extraordinary powers during a “declared war,” or any “invasion” or “predatory incursion” that is “perpetrated, attempted, or threatened against the territory of the United States” by a “hostile nation or government.” The Act authorizes the president by proclamation to remove all individuals from the United States who are “subjects of the hostile nation or government, being of the age of fourteen years and upward” who are considered “alien enemies.”
President Trump’s Alien Enemies Act Proclamation sets forth sufficient details that substantiate its conclusion that “TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” Likewise, the Proclamation sets forth sufficient details that substantiate its conclusion that “TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.” President Trump stated that he found all TdA members present in the United States to constitute “a danger to the public peace or safety of the United States.”
Thousands of Tren de Aragua gang members are present in approximately twenty states from coast to coast, thanks to the Biden administration’s unlawful open border and catch-and-release policies. This constitutes an “incursion,” if not a full-blown “invasion.” TdA members have engaged in human trafficking and have raped and murdered innocent Americans, shot police officers, and committed other violent crimes on U.S. soil that are clearly “predatory.”
Independent evidence corroborates connections between TdA and the Venezuelan regime. For example, according to a decorated former CIA station chief with knowledge of such connections:
“The Venezuelan regime has assumed operational control of these guys [Tren de Aragua] and has trained 300 of them; they have given them paramilitary training, training them to fire weapons, on how to conduct sabotage, how to use crypto. They have given them all like a four- to six-week course. They put these 300 guys through that course and that they were deploying them into the United States to 20 locations, to 20 separate states.”
In short, there is more than enough of a factual basis for President Trump to declare suspected TdA members as “alien enemies” and order their expeditious removal from the United States. Accordingly, the Trump administration used three planes on March 15th to deport over two hundred suspected TdA members and other dangerous gangbangers to El Salvador. But Judge Boasberg decided arbitrarily that he had the power to stop the president from enforcing the Alien Enemies Act to protect America’s national security.
Late in the day on March 15th, Judge Boasberg placed a temporary hold on President Trump’s legitimate use of the Alien Enemies Act, at the behest of the left-wing American Civil Liberties Union and Democracy Forward. He ordered the Trump administration to temporarily halt the deportation flights. Judge Boasberg also orally instructed the Trump administration to return any planes with deportees already in the air to the United States. Two of the three planes were flying over international waters when Judge Boasberg delivered his verbal instruction and did not turn back. All three planes carrying the deportees landed in El Salvador as planned.
Open border activists, Democrats, and legacy media outlets expressed outrage that the Trump administration allegedly failed to comply with Judge Boasberg’s rulings. For his part, Judge Boasberg ordered the Justice Department to send him a sealed filing with details as to when exactly the planes took off, left American airspace, and landed in El Salvador.
Judge Boasberg’s attempt to micromanage President Trump’s implementation of his Alien Enemies Act Proclamation is leading him down a rabbit hole. It is true that the two planes already in the air were not flown back to the United States as Judge Boasberg had orally instructed. However, it is dubious that Judge Boasberg’s oral instruction itself would be considered a legally binding judicial order, especially since his superseding written order omitted his oral instruction to return the flights in midair to the U.S.
The third plane that had not yet departed Texas for El Salvador before Judge Boasberg’s written order was posted online did take off ten minutes after his written order was posted. But, according to the Trump administration, this plane did not carry any deportees who were covered under the judge’s order.
Moreover, if any of the deportees were incorrectly identified as suspected TdA members, they were still deportable illegal immigrants who unfortunately became collateral damage in the Trump administration’s enforcement of the Alien Enemies Act. If released from the El Salvadoran jail, they should be sent back to their country of origin at this point rather than returned to the United States.
The Justice Department has resisted Judge Boasberg’s demand to turn over sensitive materials pertaining to the Trump administration’s deportation of suspected members of TdA, noting its consideration of invoking the state secrets privilege.
“The two branches are coequal, and the Court’s continued intrusions into the prerogatives of the Executive Branch, especially on a non-legal and factually irrelevant matter, should end,” the Justice Department wrote in its filing.
A 1999 Supreme Court decision written by Justice Antonin Scalia supports the Trump administration’s position. “The Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a special threat,” Justice Scalia wrote.
Nevertheless, Judge Boasberg plowed ahead. He held a hearing on March 21st to determine whether the Trump administration defied his rulings regarding the three deportation flights and to continue pressing the Justice Department to turn over the detailed information that he had requested. At this hearing, Judge Boasberg also questioned whether President Trump’s actions were justifiable under the Alien Enemies Act to begin with.
Judge Boasberg is blatantly overstepping the limits of his permissible scope of judicial review of a president’s exercise of his powers under the Alien Enemies Act. “The very nature of the President’s power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion,” Justice Felix Frankfurter wrote in his 1948 majority Supreme Court opinion in Ludecke v. Watkins. “The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.” The Supreme Court has not overturned this decision. It remains good law today.
Judge Boasberg has chosen to ignore this Supreme Court decision.
Moreover, Judge Boasberg has ignored a succession of rulings in which the Supreme Court made clear that, in matters involving national security, the courts are required to pay great deference to the president’s decisions. In one case, for example, the Supreme Court concluded that “[j]udicial inquiry into the national-security realm raises ‘concerns for the separation of powers.’” In another case, the Supreme Court observed that “[W]hen it comes to collecting evidence and drawing factual inferences in the area of national security, ‘the lack of competence on the part of the courts is marked,’ and respect for the government’s conclusions is “appropriate.’”
The Supreme Court’s 2018 decision upholding President Trump’s first term Proclamation suspending the entry of aliens from certain countries into the United States reinforced the principle that judicial inquiry into matters involving national security should be “highly constrained.” President Trump had issued this Proclamation pursuant to a provision in the INA that authorizes the president to suspend the entry of aliens into the U.S. that he finds “would be detrimental to the interests of the United States.” The Supreme Court concluded that this provision “grants the President broad discretion to suspend the entry of aliens into the United States.”
Despite these Supreme Court precedents, Judge Boasberg is second-guessing President Trump’s exercise of his broad discretion to protect America’s national security by invoking and enforcing the Alien Enemies Act. The judge is trampling on the separation of powers by intruding on the executive powers of the President of the United States and Commander-in-Chief under Article II of the Constitution. It is the responsibility of the president, certainly not of a local district court judge, to protect national security by enforcing federal laws against dangerous illegal immigrants. These laws include the 227-year-old Alien Enemies Act, which Congress has not repealed.
The Trump administration has filed an appeal of Judge Boasberg’s order that has temporarily blocked President Trump from continuing to enforce the Alien Enemies Act. The case will likely end up being decided by the Supreme Court whoever wins at the Court of Appeals level.
Several Supreme Court justices have in the past expressed their displeasure with the current practice of district court judges issuing nationwide injunctions with abandon.
“In the Trump years, people used to go to the Northern District of California, and in the Biden years, they go to Texas,” said Supreme Court Justice Elena Kagan back in 2022. “It just can’t be right that one district judge can stop a nationwide policy in its tracks and leave it stopped for the years that it takes to go through the normal process.”
Justice Gorsuch urged the Supreme Court to “take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions,” which he characterized as giving rise to “gamesmanship and chaos.” That was more than five years ago.
The situation has become far worse since then. Plaintiffs who object to a whole host of President Trump’s executive orders are succeeding in obtaining nationwide injunctions from district court judges sympathetic to their progressive causes. But in a recent case the Supreme Court, by a 5-4 vote joined by Chief Justice John Roberts and Justice Amy Coney Barrett, declined to constrain one such district court judge. Justice Samuel Alito, in his dissenting opinion joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, wrote that “As the Nation’s highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused. Today, the Court fails to carry out that responsibility.”
If Chief Justice John Roberts is genuinely concerned about preserving the institutional legitimacy of the U.S. judicial system, he will rectify this grievous failure at the earliest opportunity. He should work with his fellow justices to end the abuse of judicial power by reckless district court judges such as Judge Boasberg who think that they are superior to the President of the United States.
