Executive power respected above patchwork of liberal lower court judges.

by John Klar

The ongoing head-butting between President Trump and DC District Court Judge James Boasberg over executive power to deport illegal immigrants associated with the vicious Venezuelan gang Tren de Aragua came to a head before the US Supreme Court on April 7 in Trump v. J.G.G. A battle of egos has overshadowed a legal conflict over the due process rights of alleged gang members. The SCOTUS ruling preserves the Constitution while freeing the Trump administration to resume deportations of illegals established to be gang members. At the same time, those who engage in “judge shopping” have been put on notice.

The Road to Deportation

President Trump sought legitimate means to round up violent criminals living illegally in the country, a salient promise of his campaign run. Many left-leaning Democrats have countered, saying illegal immigrants are necessary to harvest US crops and construct American citizens’ houses, not distinguishing between honest laborers and violent fentanyl traffickers. Judge Boasberg became the poster boy for blocking Trump deportations.

President Trump accused Boasberg of suffering from Trump Derangement Syndrome. Texas Republican Brandon Gill introduced a resolution of impeachment alleging the judge abused his judicial position for “political gain while interfering with the President’s constitutional prerogatives.” House Resolution 229 charges that the judge “has prevented President Trump from removing aliens associated with Tren de Aragua, a designated Foreign Terrorist Organization” and “required President Trump to turn around planes midair that had aliens associated with Tren de Aragua.” The crux of Gill’s effort reveals the tension between the President and a phalanx of Democrat-appointed judges who have sought to thwart his every effort:

“[T]he separation of powers under the Constitution grants the President broad authority over the executive branch, including authority to protect the nation, as part of his role in ensuring the administration of laws, including the Alien Enemies Act, and policies of the United States.

“Using the powers of his office, Chief Judge Boasberg has attempted to seize power from the Executive Branch and interfere with the will of the American people.”

The resolution will likely fade in futility, even as Judge Boasberg contemplates proceeding against the Trump administration with contempt charges for turning the plane around. This is indeed high drama, but the SCOTUS decision rested on a majority determination that deportations must be decided under habeas corpus proceedings where the plaintiffs are detained, not in Boasberg’s DC District.

Solomonian SCOTUS

The majority reversed Boasberg’s efforts to handcuff the President while brushing off the strident minority dissents:

“For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement.”

Detainees will be allowed to contest their membership in Tren de Aragua in habeas proceedings, preserving due process rights but not permitting myriad challenges across the nation as the dissents advocate. This seems to be the most reasoned middle course between the battling egos of the executive and judiciary and the similarly alienated majority versus the minority of the SCOTUS justices.

Justice Sotomayor’s dissent expressed great concern for the potential of wrongly charged detainees to suffer irrevocable deportations to El Salvador’s infamous Terrorism Confinement Center (CECOT). Devastating stories of violence committed by this brutal gang have enraged the American public, compounded by revelations that the Biden administration flung borders open wide while alleging Republicans were preventing effective countermeasures. In contrast, the dissenters expressed concerns that some deportations could impact non-gang illegals who are not legitimately subject to ejection under the Alien Enemies Act.

Justice Sotomayor wrote:

“Plaintiff J. G. G., for example, had no chance to tell a court that the tattoos causing DHS to suspect him of gang membership were unrelated to a gang. … He avers that he is a tattoo artist who ‘got [an] eye tattoo because [he] saw it on Google’ and ‘thought it looked cool.’ Ibid. Plaintiff G. F. F., too, was denied the chance to inform a court that the Government accused him of being an ‘associate/affiliate of Tren d[e] Aragua’ based solely on his presence at a party of strangers, which he attended at the ‘insistence of a friend.’

“G. F. F., who had been ‘on a plane for about forty minutes to an hour’ as ‘crying and frightened’ individuals were forced on board, was subsequently retrieved from the plane by a guard who told him he “‘just won the lottery.’”

Eye for an Eye (Tattoo)

Law enforcement has libraries of tattoo analyses that allow it to identify gang memberships by tattoo art, as do prisons in El Salvador – it is not so simple as swapping an eye for an eye. Few Americans have sympathies for rapists and drug dealers who cry wolf or claim they have a positive drug test because they ate a poppy seed bagel. Yet the minority focused on a valid point of critical American jurisprudence: The President’s authority is valid only against actual Tren de Aragua members.

The majority confirmed detainees have the right to present evidence to dispute gang membership before deportations as part of a habeas corpus hearing – in the state where they are detained, not as a class of persons in Judge Boasberg’s sympathetic court. This reveals the concern of US attorneys that actual offenders might “judge shop” to evade deportations, a reasonable consideration when the honorable Judge Boasberg’s daughter is employed in “capacity building work in public defender offices across the nation” for the “staunchly pro-immigrant” nonprofit group Partners in Justice.

This dubious association may explain President Trump’s particular ire. Manhattan Supreme Court Justice Juan Merchan refused to recuse himself from the alleged “lawfare” hush money trial against Donald Trump. Merchan’s daughter, Loren Merchan, was president of a “Chicago-based progressive political consulting firm whose top clients include[d] Rep. Adam Schiff (D-Calif.), who was the lead prosecutor in Trump’s first impeachment trial, and the Senate Majority PAC, a major party fundraiser.” Democrats cry despotism; Trump cries nepotism.

The US Supreme Court chopped the jurisprudential baby in half. Judges will not freely chisel at executive power, nor will the executive branch chisel away at fundamental liberties. Illegal entrants rounded up and charged with being members of the notorious Tren de Aragua will have their day in court to compel the government to establish they are indeed associated with the gang. Lady Justice will have her due, both in due process and the understandable public sentiment that violent felons need to phone home – from an El Salvadorian penitentiary, not New York City streets on the US taxpayer dime.

The author is a Brookfield best-selling author, lawyer, farmer and pastor.