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.
Would it have been legal if he had been there? 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 is out of balance, and this myth of” administrative supremacy” needs to be refrained from it.
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 period.
What transpired is shown below. The Trump administration declared the Colombian group Tren de Aragua a criminal firm in January, and the Department of Homeland Security detained scores of alleged members over the weekend. 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 reading, only a harsh command from Boasberg to block these deportations for two weeks and plan 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 departed later that night but it carried foreign nationals who had been deported on grounds other than Trump’s designation of Tren de Aragua as a terrorist organization. )  ,
The Trump administration, in contrast to the false claims made by the corporate press, did not 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.
As if he, a lone federal judge, has the authority to direct counter-terrorism operations that fall under the purview of the Executive Branch, he called a hearing on Monday to demand information on exactly when those planes took off, when they left American airspace, and when they touched down in El Salvador. 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 do so because the plaintiffs in this case cannot use these proceedings to interfere with the President’s national security and foreign affairs authority.
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 is expressing a view of judicial and executive powers that is more in line with the originals ‘ definitions. 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 so on an individual level, they do not have the same authority as the other two branches, or the states in particular, in terms of interpreting and applying the Constitution.
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 on their own to protect 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 accused the Biden administration of “broken the United States’ and the US’s compact” Unfortunately, Abbott didn’t go backwards far enough in his own logic. 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 outlined the justification for this more sweeping view of separation of powers. 49:” Neither of the several departments, it being obvious, can pretend 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 , of the branches of the national government, as well as to the instruments of state governments, and of juries, with none of these actors literally , bound , by the opinions of any of the others, as noted by legal scholar Michael Paulsen. This view holds that the Constitution itself, not the Supreme Court, is the country’s supreme law.
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 the leader of the Civil War to holding enemy prisoners.
Indeed, if we adhere to contemporary conceptions of judicial supremacy, much of what Lincoln did as president should be viewed as unlawful and unconstitutional. By contrast, the view of Stephen Douglas was that , Dred Scott , was the law of the land and must be obeyed. Even though they shy away from admitting it and are unable to draw the conclusion logically that the South had a right to secede, many legal scholars today actually support Douglas ‘ view.
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.”
