The battlefield for the new lawfare against President Donald Trump was quickly shaped when, within hours of the president’s March 15 executive order deporting alleged Venezuelan gang members, ACLU lawyers sympathetic to their plight filed a habeas petition in the D.C. District Court.
The ACLU is seeking to stop the executive branch from removing five plaintiffs. D.C. District Judge James Boasberg hastily took command and control over the latest iteration of lawfare, emergently agreeing to consider the case and issuing orders camouflaged in legitimacy. Judge Boasberg’s orders, actions, and reactions are laden with plain error.
From the onset, Boasberg failed to recognize his court lacks the jurisdiction to hear this case. Why? The ACLU filed this case in the District of Columbia. The five Venezuelan plaintiffs represented by the ACLU are not detained in D.C., but in New York and Texas. The Supreme Court ruled in Rumsfeld v. Padilla that no court has jurisdiction over a habeas petition unless those filing the petition are detained in the district in which it was filed.
Boasberg was also quick to accept the plaintiffs’ premise that the Alien Enemies Act (AEA) is a power properly exercised only during a time of war. This is patently false. Any plain reading of the law makes it clear that the AEA is an appropriate power to invoke not only during a time of war, but when the president determines there has been an invasion or predatory incursion. Even more persuasive is the Supreme Court’s ruling in Ludecke v. Watkins that the AEA extends beyond wartime. And without a statutory definition of “invasion” or “predatory incursion,” it is the judgment of the president alone to determine if such has occurred. This national security determination is a non-justiciable political question and the Supreme Court has repeatedly informed the intellectually curious that political questions are not reviewable by a court.
Standard for Equitable Relief
Lawfare has proven to lack legal standards, so it is no surprise this legal skirmish lacks them as well. The legal standard for the equitable relief sought in this case — and for every request for a temporary restraining order (TRO) or injunction — is considerable proof of “irreparable harm.” Upon issuing the TRO, Boasberg fortified the plaintiffs’ arguments that alien enemies would be irreparably harmed if deported. However, the Supreme Court again countered this when it ruled in Nken v. Holder that an illegal alien’s removal from the U.S. can never meet the standard of irreparable harm, and therefore a TRO cannot issue on that basis.
Oral Order
Ever valiant, Boasberg continued to pepper the record with error when he gave the Justice Department (DOJ) lawyers an oral order to turn the planes around. He then issued a written order that never mentioned flights or aircraft. Two planes full of alien enemies left Texas and were over international airspace at the time of the written order. A third plane departed after both the oral and written orders were published. In an apoplectic fit, the ACLU and Boasberg furiously demanded an explanation from the administration, suggesting contempt of court.
Such bravado deflated quickly when DOJ pointed out the D.C. Circuit has ruled that oral orders have no veracity and only the written order, entirely devoid of any mention of airplanes full of terrorists, controls. Moreover, Boasberg’s morale must have waned further when he learned the federal courts have repeatedly ruled that a person is “removed” from the U.S. the moment they reach international airspace. All removed alien enemies on the first two flights were over international airspace at the time of Judge Boasberg’s written order.
But that third plane? It departed after his written order enjoining all removals of Tren de Aragua gang members and Venezuelans pursuant to Trump’s AEA executive order. Boasberg commanded he be provided flight logs, manifests, geolocations, and deplaning timeframes for this mystery third flight. Instead, DOJ disarmed him with a fact-check that while the third flight did leave after his order and was indeed filled mostly with Venezuelans, all of those removed had orders of removal from the courts. In other words, they were not removed pursuant to the executive order but pursuant to Title 8 and Article II authorities enjoyed by the president.
Judge Goes Too Far
Judge Boasberg refuses surrender and continues to reload with double-barrels of impermissible encroachment on executive powers. The duly elected president has informed the American people that a foreign terrorist organization is operating within the U.S. at the behest of a foreign nation and he has deployed his proper authorities under the AEA to cause their removal in the interests of national security. The federal courts have ruled that the AEA vests “unreviewable power in the President to restrain, and to provide for the removal of, alien enemies.” Trump’s basis for his invocation of the AEA is a non-justiciable political question not to be answered by the wholly unqualified Boasberg or ACLU. It is answered exclusively by the president.
Boasberg has gone too far and too fast to retreat, so this skirmish will continue until the Supreme Court loads up the Article II canons on his position (see what I did there). Through his orders and admonitions, Boasberg has tactlessly given imprimatur to the “legal strategy” of disrupting the Trump presidency at all costs. Boasberg has called DOJ’s response to brash authority as “woefully insufficient,” but, candidly, his stewardship of this case thus far has been nothing more than woeful.
President Trump’s adversaries were determined to take his freedom, his fortune, and even his life. Those efforts thankfully failed. But his enemies remain undeterred.
This is just lawfare by other means.
