Did President Trump ignore a request from U.S. District Court Judge James Boasberg in Washington, D.C., to end the imprisonment of hundreds of reported jihadists and gang members this trip? No.
Did his choice have been legal if he had been? Yes.
For too long, we have accepted without question the false belief that the national court has the exclusive power of legal interpretation, and that the states and the other branches of the federal government are bound to take whatever the courts choose. The legal system created by our Founders has thrown the story of” judicial supremacy” out of balance, and it needs to be refuted.
The recent case, which concerns whether a federal judge can stop the Executive Branch from removing foreigners who have been identified as belonging to a terrorist organization, is a perfect opportunity to reaffirm the Founders ‘ position on the authority of constitutional interpretation, which both president Andrew Jackson and Abraham Lincoln shared and took into action. It now seems the Trump presidency is reviving this long-lost watch, and it’s about day.
What transpired is shown here. The Department of Homeland Security deported values of alleged Tren de Aragua people over the weekend from Venezuela, which the Trump administration declared 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 detained in El Salvador, where President Nayib Bukele has agreed to place them indefinitely, along with other alleged gang members who had been operating improperly there.
In an effort to stop the deportations, Judge Boasberg, a vehemently anti-Trump judge with a long history of doubtful criminal engagement, issued a temporary restraining order in response to a demand from the ACLU and the Democracy Forward law firm led by Marc Elias. There was no hearing, only a harsh command from Boasberg to block these deportations for two weeks and make for a hearing — as if Executive Branch policy, also on delicate matters of national security, may simply be dictated by an superior court judge.
Unfortunately, two of the deportation flights had already taken off and were outside the United States by the time the judge’s written order was issued on Saturday evening, according to Boasberg and the ACLU. Boasberg’s order was irrelevant because a third flight flew later that night but it flew foreign nationals who had been deported on grounds other than Trump’s designation of Tren de Aragua as a terrorist organization.  ,
Contrary to the falsehoods made by the corporate press, the Trump administration didn’t defy Boasberg and disregard his orders. The federal courts no longer had jurisdiction over the alleged terrorists and were unable to issue orders involving them once they were removed from U.S. territory. However, by asserting this much the Trump administration signaled that it doesn’t accept the judicial supremacist view that Boasberg can dictate White House policy from the federal bench, much less order U. S. military aircraft to turn around mid-flight.
In response, Boasberg called a hearing on Monday, asking for information on exactly when those aircraft took off, when they left American airspace, and when they arrived in El Salvador, as if he, a lone federal judge, had the authority to direct counter-terrorism operations that are exclusive to the Executive Branch. The administration simply stated that these were operational questions that it was not permitted to discuss in a public setting. ( In a jaw-dropping display of arrogance, Boasberg , shot back , that that his judicial powers “do not lapse at the airspace’s edge”. )
Attorney General Pam Bondi addressed the administration’s position on the bigger question, whether or not the federal courts are even able to intervene in this case just before the hearing. Bondi argued in a , response, and motion to leave that the Court lacks jurisdiction to interfere with the President’s authority to impose national security and foreign affairs.
Bondi went on to explain that” just as a court assuredly could not enjoin the President from carrying out a foreign drone strike or an overseas military operation, or from negotiating with a foreign power to coordinate on such an operation, nor could a court lawfully restrict the President’s inherent Article II authority to work with a foreign nation to transfer terrorists and criminals who are already outside the United States”. In other words, the president’s citation of the AEA is unreviewable and non-justiciable.
The administration’s position on judicial and executive powers is more in line with the founding fathers ‘ definition of them. Put simply, the Founders didn’t think the judiciary was the sole arbiter of what is and is not constitutional. Although the courts, which are led by the Supreme Court, do have an independent authority to interpret and apply the Constitution, that doesn’t imply that they are superior to the other two branches or the states for that matter.
In light of the question of states ‘ constitutional authority to interpret the Constitution, it is well established that a state like Texas has the right to decide matters in its own hands when it comes to protecting its citizens in the event of an invasion. Texas Gov. Greg Abbott partially fabricated this claim in January when he declared an invasion of Texas and Mexico and charged the Biden administration with breaking the “pact between the US and the States.” Unfortunately, Abbott underreported his own logic to the fullest extent. He stopped short of ordering state law enforcement to arrest and expel to Mexico those caught illegal crossing the Rio Grande. )
In Federalist, No. 2, James Madison clearly stated the rationale behind this more expansive view of separation of powers. 49:” Neither of the several departments, it being obvious, can pretend to have an exclusive or superior right to settle the boundaries between their respective powers, being perfectly coordinated by the terms of their common commission.
That means the judiciary can’t simply dictate to the Congress or the president what they must or must not do according to the Constitution. The power of constitutional interpretation is a divided, shared power incident to the functions of each branch of the national government, as noted by legal scholar Michael Paulsen, who is not literally bound by the opinions of any of the others. This view holds that the Constitution is the country’s supreme law, not the Supreme Court.
If that sounds like a radical view of the Constitution and the separation of powers, that’s only because we have strayed so far from how our constitutional system was first established, and have imported the alien concept of judicial supremacy that elevates the role of the courts over and above the political branches and the states.
It wasn’t always in this situation. For instance, Abraham Lincoln understood that the Executive Branch had an inherent right to interpret the Constitution even though it was not necessarily bound by the Supreme Court’s decisions. Lincoln and the Congress both famously asserted what we might call constitutional supremacy in their defiance of the Supreme Court ‘s , Dred Scott , decision, by enacting and enforcing laws prohibiting slavery in federal territories — something , Dred Scott , expressly forbade. In addition, Lincoln defied a Supreme Court ruling that purportedly limited his authority as commander in chief to hold enemy prisoners during the Civil War.
Indeed, much of what Lincoln did as president should be viewed as illegal and unconstitutional if we adhere to contemporary notions of judicial supremacy. By contrast, the view of Stephen Douglas was that , Dred Scott , was the law of the land and must be obeyed. Even though many legal experts shy away from admitting it and are hesitant to draw the conclusion that the South had a right to secede, many today actually support Douglas ‘ position.
It’s still to be seen how all of this will unfold in Boasberg’s courtroom or, perhaps, the Supreme Court. But so far the Trump administration is asserting an older and more grounded understanding of constitutional supremacy and the separation of powers, one from which we have strayed very far and to which we need to return.
If not, anticipate radical anti-Trump judges like Boasberg to keep claiming the exclusive authority of constitutional interpretation over and against the president and Congress, effectively bringing all of the federal authority together in one place, as Madison rightly put it,” the very definition of tyranny.”
