I have previously written against calls to impeach federal judges who have ruled against the Trump Administration in the issuing of temporary restraining orders (TROs) and preliminary injunctions. The latest target of such calls in the House is District Court Judge James Boasberg, who issued a temporary restraining order against Trump’s invocation of the Alien Enemies Act. GOP members are making a mistake in engaging in the same impeachment craze that took hold of the Democratic members in prior years (and continues this year). The way to respond to such rulings is to appeal them, not to try to remove judges (which is neither warranted nor likely).
One of the greatest abuses of the Democratic party in the past eight years has been their use of impeachment investigations and charges against their political opponents. From President Donald Trump to conservative justices, liberal members have demanded impeachments over everything from opposing the NFL kneelers to hanging revolutionary-era flags.
Now, some Republican members (and Elon Musk) have joined this frenzy in calling for the impeachment of judges who ruled against Trump’s earlier executive orders and programs. Elon Musk has supported this effort.
The Trump Administration was fully aware that the executive proclamation invoking the use of the Alien Enemies Act to detain and deport members of Tren de Aragua would be controversial. While the Administration believes that it can establish the legal basis for such use of the largely dormant law, the issuing of a temporary restraining order within hours of the EO was not unexpected. We expect an expedited and intense appeal process to now unfold.
The Alien Enemies Act is best known as one of the notorious Alien and Sedition Acts of 1798 used by the Adams Administration. I discuss the abuse of those acts in my book, The Indispensable Right: Free Speech in an Age of Rage.”
The case presents a number of novel issues. First, as a threshold matter, is whether a presidential determination of the underlying criteria is even reviewable by the federal courts. Some argue, and the Trump Administration is likely to assert, that this is a political question that is heavily laden with international and national security determinations.
Second, assuming that it is reviewable, the Act was designed for deportations in wartime or in cases of “invasion.” We have previously discussed how states sought to broaden the definition of “invasion” under Article IV, Section 4, the so-called Guarantee Clause. The Trump Administration is arguing that Tren de Aragua is different because it is being used or directed by the Venezuelan government. Trump has previously alleged that the radical regime is emptying its prisons to undermine the United States. Under this argument, the gang is being used by a “foreign nation or government.”
The treatment of this as an invasion could also trigger other powers from states closing the borders unilaterally to even a move to suspend habeas corpus.
The point is only that there are good faith arguments on both sides to be made in the courts. That is why we have independent courts and the finest judicial system in the world.
I have criticized Judge Boasberg, who was involved in the controversial FISA surveillance during the first Trump term and made a poor choice of the attorney tasked with investigating that matter. I also criticized him in prior treatment of pro-life litigants in a case reversed by the D.C. Circuit. However, he has also ruled against Trump critics).
The response for the Administration should be to seek an expedited appeal. The district court cannot drag out a TRO very long before issuing an order that can be appealed.
This country is facing novel issues and the Administration is not surprisingly trying to use novel means to address them. I expect that it will prevail in many of these initial fights while losing others. That is part of the process in a nation committed to the rule of law.
The Trump Administration can appeal and leave impeachment out of it.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”