No, the House Should Not Impeach Judge Boasberg Over His Tren de Aragua Restraining Order
S E E D E D C O N T E N T
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 ."
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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.
And we do know how the appeal will go.
I get the appeal of impeaching him to shame him, but there is zero chance at removal. Plus, tds sufferers probably would take being impeached as a badge of honor,
And I think Turley believes that the dems would start impeaching judges who made legitimate rulings. I happen to think impeachments might discourage all District Judges from getting involved in national politics.
What the supreme court needs to make clear to all district judges is that, there rulings only effect their districts, these nationwide rulings need to be slapped down again.
Not surprisingly, Turley discounts the implications of Constitutional separation of powers. The conflict between the executive and judiciary over application of law ignores that Congress really does have a say over intent of the law.
Self government is an underlying principle for our Constitution and law. Congress is the only branch of government that directly represents the will and intent of the public for governing itself. So, excluding congress from the internecine disputes between the more autocratic branches of government removes the voice of the electorate from governing. Claiming that Congressional oversight has no role and the issue must only be resolved by the courts undermines the principles of self government.
Congress has a Constitutional responsibility to perform oversight and represent the will and intent of the electorate (and larger public). The political parties have consistently abused that responsibility (and authority). But that doesn't justify legal arguments to eliminate the voice of the public from governing. The Constitution wasn't intended to protect and defend political parties. Turley's argument that Congress shouldn't be involved is a little too self serving.
I don’t know who he is referring to with these alleged impeachment investigations (plural), but I found two in the last ten years. One was last year, when Democratic members in the Republican controlled House wanted justices Thomas and Alito impeached for not recusing themselves from cases where they had conflicts. That proposal died in committee, so I’m not sure calling it an “investigation” is warranted.
The other was 10 years ago, when a federal judge got drunk and beat his wife. He resigned.
Random people shooting off their mouths is not something I think anyone is actually tracking, nor would that qualify as an impeachment investigation.