Judge Boasberg vs. the President and the Supreme Court

 Daily Signal:

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On Feb. 20, the State Department designated eight transnational gangs and cartels as FTOs, including Tren de Aragua, a criminal organization that began as a prison gang in Venezuela in 2010.

On Mar. 14, Trump made the proclamation required by the Alien Enemies Act, emphasizing Tren de Aragua’s connection with Venezuelan leader Nicolas Maduro and his “regime-sponsored, narco-terrorism enterprise.” Tren de Aragua, the proclamation explained, “commits brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking.”

The Trump administration moved quickly to act on this proclamation, apprehending dozens of suspected Tren de Aragua members and detaining them at a facility in Texas. The plan was to deport them on March 15 and transfer physical custody to officials in El Salvador who had agreed to house them.

Enter the lawyers, who filed a lawsuit at 1:12 a.m. on March 15 to block the removal of any suspected Tren de Aragua members.

They asked for two things from Chief Judge James Boasberg of the U.S. District Court for the District of Columbia, who had been assigned the case. They wanted a writ of habeas corpus releasing the five detainee plaintiffs. More broadly, they sought the certification of a class (for the purpose of maintaining the lawsuit as a class action) consisting of all individuals, anywhere in the country, covered under the proclamation—and an order protecting all such individuals from removal.

At 9:40 a.m., Boasberg issued a temporary restraining order barring removal of the five named plaintiffs, and they remained in the country. But here’s where the drama heats up.

Later that day, between 5:25 and 5:45 p.m., two flights with a total of 137 suspected Tren de Aragua members left Texas, bound first for Honduras and then El Salvador. At 7:25 p.m., Boasberg certified a class of all individuals covered by the proclamation and issued a temporary restraining order, prohibiting the government from “removing” them for 14 days. On March 28, he extended that order for another 14 days.

The Supreme Court stepped in on April 7, vacating both of Boasberg’s March 15 temporary restraining orders. A writ of habeas corpus, the court said, must be sought in the jurisdiction where the plaintiff is being detained. In this case, that would be Texas.

The real fireworks were over the meaning of just one word in Boasberg’s second temporary restraining order: “removing.”

The government said that “removing” meant expelling the detainees from U.S. territory, which occurred before Boasberg issued his temporary restraining order. Boasberg, however, claimed that “removing” meant actually relinquishing custody to a foreign sovereign, which did not occur until after his order had been issued. Under Boasberg’s reading, the government had violated his temporary restraining order.

But he wasn’t finished. On April 16, he issued yet another order claiming probable cause for criminal contempt for the government’s “willful disobedience” of the temporary restraining order. Boasberg’s shocking ultimatum to the executive branch was this: Return the deportees to U.S. soil or identify the officials who ordered the deportation so they could be prosecuted. He set a hard deadline of April 23.

But wait—hadn’t the Supreme Court already vacate Boasberg’s temporary restraining order? How can someone disobey an order that, in effect, Boasberg had no authority to issue?

Boasberg surely knew what was coming because his contempt order came with an opinion accusing the Supreme Court of enabling all sorts of horrors: secretly loading people onto planes, keeping many in the dark about their destination, and racing to “spirit them away before they could invoke their due-process rights.” But a selective repetition of some facts is no substitute for a legal argument.

For that, the government turned to the U.S. Court of Appeals for the D.C. Circuit, which has appellate authority over Boasberg. Judges Gregory Katsas and Neomi Rao sided with the government, vacating Boasberg’s contempt order, while Judge Cornelia Pillard dissented.

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I think it is odd that a District Court judge would get in a fight with both the President and the Supreme Court.  And why would a District Court judge go to bat for Tren de Aragua, that is accused of committing brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking.

See also:

It’s Not a Movie: Courts’ Dramatic Smackdown of Judge Boasberg