Did President Trump ignore an order from U.S. District Court Judge James Boasberg in Washington, D.C., to halt the deportation of hundreds of alleged terrorists and gang members this weekend? No.
Would it have been constitutional if he had? Yes.
For too long, we have accepted without question the fallacious notion that the federal judiciary has the exclusive power of constitutional interpretation, and that the states and the other branches of the federal government are bound to accept whatever the courts decide. This myth of “judicial supremacy” has thrown the constitutional system devised by our Founders out of balance, and it needs to be rejected.
The current case, which concerns whether a federal judge can prevent the removal of foreigners whom the Executive Branch has determined are part of a terrorist organization, is the perfect opportunity to reassert the Founders’ view of the power of constitutional interpretation — a view that was shared, and acted upon, by presidents Andrew Jackson and Abraham Lincoln. It now seems the Trump administration is reviving this long-lost view, and it’s about time.
Here’s what happened. Over the weekend, the Department of Homeland Security deported scores of alleged members of the violent Venezuelan gang Tren de Aragua, which the Trump administration designated 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 arrested, along with other alleged gang members in the country illegally, and flown to El Salvador, where El Salvador President Nayib Bukele has agreed to imprison them on behalf of the United States.
Judge Boasberg, a virulently anti-Trump judge with a long history of questionable judicial activism, acting on a request from the ACLU and the Marc Elias-led lawfare firm Democracy Forward, issued a temporary restraining order in hopes of stopping the deportations. There was no hearing, just a blunt command from Boasberg to halt these deportations for two weeks and prepare for a hearing — as if Executive Branch policy, even on sensitive matters of national security, can simply be dictated by an inferior court judge.
Unfortunately for Boasberg and the ACLU, two of the deportation flights had already taken off and were outside U.S. territory by the time the judge’s written order was issued on Saturday evening. (A third flight departed later that night but it carried foreign nationals that were deported on grounds other than Trump’s designation of Tren de Aragua as a terrorist organization, so Boasberg’s order was irrelevant.)
Contrary to the false claims of the corporate press, the Trump administration didn’t defy Boasberg and ignore his order. It simply recognized that once the alleged terrorists had been removed from U.S. territory, the federal courts no longer had jurisdiction and could not issue orders concerning them. 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 demanding to know exactly what time those planes took off, when they left U.S. airspace, and when they touched down in El Salvador — again, as if he, a lone federal judge, has authority to direct counter-terrorism operations that fall under the exclusive authority of the Executive Branch. The administration said simply that these were operational questions that it was not at liberty 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.”)
Just prior to that hearing, Attorney General Pam Bondi laid out the administration’s view of the larger question of whether the federal courts even have the power to intervene in this case. In a response and motion to vacate, Bondi argued that the plaintiffs in this case “cannot use these proceedings to interfere with the President’s national-security and foreign-affairs authority, and the Court lacks jurisdiction to do so.”
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.” The president’s invocation of the AEA, in other words, is non-justiciable and unreviewable.
What the administration is expressing here is a view of judicial and executive powers that more closely conforms to how the Founding Fathers understood them. Put simply, the Founders didn’t think the judiciary was the sole arbiter of what is and is not constitutional. While the courts, headed by the Supreme Court, indeed have an independent power to interpret and apply the Constitution, that doesn’t mean they are supreme over the other two branches, or the states for that matter.
(On the question of states’ authority to interpret the Constitution, there’s a strong case to be made that in the face of federal inaction or dereliction of duty in Washington, a state like Texas has a constitutional right to take matters into its own hands to protect its people in cases of invasion. Texas Gov. Greg Abbott partially made this case last January when he declared an invasion at the Texas-Mexico border and accused the Biden administration of having “broken the compact between the United States and the States.” Unfortunately, Abbott didn’t take his own reasoning far enough. He stopped short of ordering state law enforcement to arrest and expel to Mexico those caught illegal crossing the Rio Grande.)
James Madison stated plainly the reasoning behind this more expansive view of separation of powers clearly in Federalist No. 49: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”
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. As legal scholar Michael Paulsen has written, “the power of constitutional interpretation is a divided, shared power incident to the functions of each of the branches of the national government — and to instruments of state governments, and of juries, as well — with none of these actors literally bound by the views of any of the others.” According to this view, the Constitution itself, not the Supreme Court, is the supreme law of the land.
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 this way. Abraham Lincoln, for example, understood that the Executive Branch was not necessarily bound by the rulings issued by the Supreme Court but had its own inherent power to interpret the Constitution. 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. Lincoln also defied a Supreme Court decision purporting to limit his authority as commander-in-chief to hold enemy prisoners during the Civil War.
Indeed, if we adhere to modern notions of judicial supremacy, then much of what Lincoln did as president should be viewed as illegal and extra-constitutional. By contrast, the view of Stephen Douglas was that Dred Scott was the law of the land and must be obeyed. Many legal scholars today actually endorse Douglas’ view, even if they’re shy about admitting it and loathe to take the argument to its logical conclusion: that the South had a right to secede.
How all of this will play out in Boasberg’s courtroom, or perhaps even in the Supreme Court, remains to be seen. 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 we don’t, expect radical anti-Trump judges like Boasberg to continue claiming the exclusive power of constitutional interpretation over and against the president and Congress, effectively gathering all federal power in one place — what Madison rightly called “the very definition of tyranny.”
Jesus Christ is King
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