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.”
The only problem with your analysis is that the Democrats have opened the door to using impeachment as a vote of confidence, and Republicans unilaterally abstaining from using it will not deter the Democrats from using it .
In point of fact, Representative Green from Texas has already filed a petition for impeachment.
Only using it against Democrats will there be any chance of slowing down the filing of impeachments.
Well said. Impeach the Obama appointed traitor! Safety
Of the USA is first!
Professor Turley, how do you propose a discipline for Judges who with Malice toward the Constitution violate the very Principles that the Judicial Branch was formed around? I find the only remedy available to us is impeachment. Give me another option?
A very good question!
OT,
A new poll has the Democrat party at a record low! Just 29%!
Gets even better. When asked who they thought “best reflects the core values,” check it out,
1. 30% did not name someone.
2. 10% said Rep. Alexandria Ocasio-Cortez, D-N.Y.
3. Former Vice President Kamala Harris 9%.
4. Sen. Bernie Sanders, I-Vt., 8%.
5. House Minority Leader Hakeem Jeffries, D-N.Y., 6%.
6. Former President Barack Obama 4%.
7. Rep. Jasmine Crockett, D-Texas, 4%.
8. Senate Minority Leader Chuck Schumer, D-N.Y., tied with many others at 2%.
HAAHAHAHAHAHA!!
And the poll was conducted by CNN and SSRS.
Let the left pass laws to stop the actions, elections have consequences.
No SIR, I firmly disagree with your premise on this issue. I respect your position, but disagree with it with extreme prejudice.
The [ds] or uni-party or whatever you call them are doing the same thing they did 2017-2020. The only reason they haven’t impeached POTUS is because we have the majority, slim as it may be….
We should impeach each and everyone of them. That’s why we have judicial committee’s in Congress and Senate. The sooner we put a stop to this ‘lawfare’ the better, it’s above my pay grade as to HOW we stop it, but there maybe needs to be a law enacted for fast appeals to SCOTUS {tho, the way they are voting seems to me that wouldn’t help either}.
With the Wisconsin SCOTUS seat being voted on in coming weeks, if the [ds] wins that seat & ‘redistricts’ in favor of the dimz, Wisconsin could go 4-4 instead of the 6-2 for Republicans. Time will tell.
My wife keeps telling me America isn’t mentioned in Daniel or Revelation, so there is that too…
https://judiciary.house.gov/subcommittees/committee-judiciary-119th-congress
https://www.judiciary.senate.gov/about/members
MAGAA1st
11b
Do Republicans want to empower a future president to have authority to abolish or severely restrict 2nd Amendment gun rights in 1 minute in a single day?
Trump supports that very authority which will come back to bite Republicans in a very bad way.
Maybe the 14th Amendment should be updated, maybe not. But do Republicans want any future president alone to have that authority to take away rights in a single day?
Judges provide that check & balance on presidents trying to exceed their authority. Judges are good for Republicans also.
Yes, the MAGAs want the President to take away rights. Because they believe the President will take away the rights of others, not themselves.
the problemS in your arguments are large.
these are not citizens, who have crossed into this country illegally. that IS A CRIME.
these are non us citizens who also have a criminal history; either crimes committed in other countries prior to crossing illegally in this country, AND/OR, crimes committed while in this country…again, illegally.
President Trump is not ordering the depravation of rights to citizens. And you have completely missed this important detail.
Separately, the President has issued emergency state conditions orders. Under a perfectly suitable and applicable authority, that is his own and is non reviewable.
Judges do not have the constitutional authority to represent the interests of non us citizens, given they have NO RIGHTS ..given they are here illegally. This essential distinction was precisely WHY Bush had his legal team and Congress debate how to deal with non uniformed combatants. It was not simply that Bush did not want them to have access to the courts, but plainly, they had no such rights. Hence, they were removed and placed outside of US court jurisdiction and handled by the military at his and only his express authority to do so. That continued and continues to be the policy for every president since. This is not contentious and there are no particular reasons to believe President Trump is doing anything differently. He does appear more motivated and faster timeline, but again, President Trump spares no fools and he campaigned on deporting illegal aliens. It should INSPIRE CONFIDENCE he has chosen as a priority to remove those who are criminals.
why is this so difficult for Democrats to under? why would a court judge attempt to challenge that authority…a plenary power of the President. Moreover, what is the intent of this Judge to completely ignore the reality that we have million of illegals, who by the simple act of illegally crossing the border ARE CRIMINALS…why would he chose to represent THAT INTEREST? they have no rights..they are not citizens.
and if you think this is immoral, great…you have every right to express moral outrage. protest it ..but what you cannot do is attempt to qualify this as a civil rights violation. it is not. The moment these people crossed the border illegally, they had no more rights than they did just 100 meters away before crossing: NONE!
and it’s time to stop pretending this is true.
there IS a difference between what you would like to happen and what is the truth.
the truth is this judge is well outside of his power. Likewise, the mere public statement made by the Chief Justice about why impeachment is wrong, is also a obvious overstep. as much as it is just simply wrong on the substance. OF COURSE, it is impeachment that is the answer when a judge acts unlawfully…when a judge acts to defy the power of the President. While not a crime, certainly we could classify it as abusing his court powers to curtail the power of the President..for obvious political reasons. Thus his impeachment is based on a loss of confidence that is making decsions on the basis of the law…that he is acting in opposition to it for political reasons. And that is a good basis to impeach him. Likewise at a minimum the chief justice should receive a letter of censure and warning that any more public statements about his also obvious politically motivated challenge to impeachment as a solution, will result in his impeachment trial.
we are either a nation of law and order, or we are not.
and that includes black robes.
IT IS CONGRESS THAT LAYS LIMITS TO THE PRESIDENT! And they have the same process: impeachment.
If Congress believes the President has violated some law and the lawful rights of these non us citizens who are criminals by flying them out of the US, that is where the check and balance is. and clearly this is exactly how the constitution defines and limits that power of impeachment of the President.
God Bless America
When a law has not been used by the government for 200 years, it is a reasonable argument that it should not not be used. By tacit agreement, it has been recognized as wrong-headed and the extreme product of a particular time. But the same situation existed when Democrats invoked the “insurrection” clause of the 14th Amendment to keep Trump off the ballot.
I agree regretfully that Trump is acting “out of control” on some issues, foreign and domestic, but Democrats should consider that their campaign of personal destruction against him may have radicalized him.
The premise of the “Constructionist” view of the Constitution versus the “Originalist” view is that all those court cases are like the foundation of a building. Even though not used recently, they are cited in current court cases.
For example: a gun rights case in 2025, might cite a gun rights court ruling in the 1800’s as its foundation. Future court rulings unusually follow past rulings (precedent) as long as the past rulings were constitutional.
We’ll put you down for “tacit” law holding dominion.
EVERY law enacted by Congress should have a sunset provision. After some period of time – say ten years – the law would expire unless Congress affirmatively voted to extend it. That would make Congress more accountable and incentivize them to allow bad law to die.
Of course, since government is now so large, unmanageable, and unaccountable, they don’t even bother using the normal appropriation process for budgeting. They just wait to the last minute and pass continuing resolutions to keep all the fraud, waste, and abuse created by prior Congresses going. So expecting them to be responsible about extending laws set to expire is probably a fantasy. They’d just go through the motions and extend them all.
But if we ever get responsible governance, sunset provisions ought to be considered.
it was last invoked during WWII, not 200 years ago.
Emahl85bedefa05–The law was invoked in WW1 and WW2.
Congress, not the President has power of immigration. Trump tried to deport unknown people without due process in violation of federal law. The judge reasonably ordered Trump not to do that until a hearing can be held. Trump did it anyhow, sending a plan of people to a Venezuelan prison to be held there for a period of at least a year, again without a trial or any due process.
Under any other sane system, a President ordering people in the US to be send to a Venezuelan prison without a trial and in violation of a TRO would be very strong grounds for impeachment and criminal trial.
But in MAGA fascist world, we call that Sunday.
Leave it to a evil Democrat to defend, terrorists, gang members, rapists, murders.
Why would a evil Democrat defend these people? Could it be, they have something in common?
It requires a conviction in a court of law to be designated any of those labels. Most Democrats I know support constitutional due process of “suspects” (or the unconstitutional standard of “person of interest”).
Nobody is guilty until indicted, confronted and receiving a trial (testing of accusations) in a court of law.
Trump for his part did receive constitutional due process. A jury of both Republicans and Democrats ruled Trump was convicted of 34 felonies.
Simply throwing out labels means nothing without due process of law.
“Congress, not the President has power of immigration. “
Franke, how does Congress have the power over illegal immigrants? Does Congress have an army, police force or border control agents? Those illegals are criminals. What entity in government manages illegal activities? Did you hear of the DOJ?
Historically it is noted that power is fought over between the Executive and Congressional branches. We must accept and expect that to happen because we created a system of checks and balances where clarity is not assured.
Since you are so sure of yourself about the operation of our nation and the powers that exist would you like to give back the Louisiana purchase?
Congress passed immigration law.
The judge and judicial branch are vested no executive power.
There are 535 voting members of Congress. Like any group can you paint an entire party or organization by a handful of nuts (found in every group)?
It seems inaccurate and wrong to stereotype all Republicans by a few nuts in the party or to stereotype all Democrats using that same broad brush.
Why not instead state that maybe 10% of either party support a crazy action, instead of stereotyping the 90% of any group? If you had 90% really good brave cops following the law but 10% bad apples would you say most cops are bad? It’s creates a false misleading portrait of that group.
I would guess 99% of Republicans opposed the idea of drinking industrial bleach and cleaning products to cure Covid (one Republican said that). I would bet 99% of Democrats oppose defunding the police entirely, even though a small percentage supported it (most Democrats support defunding unconstitutional practices not defunding the police itself, as do most police officers).
You had me until you brought up the “drinking bleach“ canard.
“I would guess 99% of Republicans opposed the idea of drinking industrial bleach and cleaning products to cure Covid (one Republican said that).”
Nobody said that. If you don’t want to be taken seriously, why bother typing?
As the transcript plainly shows, Trump, impressed by hearing disinfectants could kill any virus, even SAR-CoV-2, on environmental surfaces, asked if there was anything LIKE disinfectants, that would work inside the body. He never mentioned bleach or other mop and bucket products.
Agree that impeachment is an extraordinary remedy provided by the Constitution which should not be invoked lightly.
Allow the wheels of justice to grind finely if slowly and only invoke extraordinary remedies in the face of clear abuse of office or misconduct.
It might really be more an ego issue, but from a constitutional perspective presidents are essentially “employees” of Congress. Congress tells the president which laws to execute (Executive Branch) within the legal boundaries of the U.S. Constitution.
Congress is more like the Board of Directors serving shareholders and presidents are the “CEO” (employee) of Congress.
Judges are the “referees” when either presidents or Congress violate the legal or constitutional out-of-bounds. Judges only intervene when law breaking happens by presidents.
This is something I agree with. The President is subservient to Congress. And it is as it should be.
He was a member of the undergraduate society Skull and Bones. Judges like him need to be retired. They have lost their way and seek to remake America into a globalist swamp of lies and deceptions. There is no excuse for his outrageous actions/ruling. He is either owned, and told what to say and do or a foolish clueless old man. In either case he is unqualified to remain a judge or practice law
The legal system is 90% too big.
Remove him
So how do you punish judges for wrong doing?
I may attract some ire here, but in truth:
(1) Boasberg’s TRO is for 14 days. Considering that he is responding to an emergency Saturday night filing by ACLU, and the fact that multiple issues are raised, I do not find that unreasonable. Let’s just wait to see the grounds/bases for his final ruling.
(2) Boasberg’s Minute Order included granting Plaintiffs’ request for Class Certification. Yesterday, I saw many comments about abusive judges usurping their authority with “national injunctions.” THIS is the correct way to handle that issue (on federal questions), and members of a purported class must establish indicia qualifying their status.
(3) Notwithstanding, DOJ responded that this court had no jurisdiction over the matter because the named Plaintiffs did not fall under the jurisdiction of this court. The court then granted the motion for class certification….
(4) Although the demands for impeachment are obnoxiously extreme and inappropriate, nonetheless, such demands do call attention to judicial rulings that we commoners might not have appreciated or known of. I suspect that many if not most of those demands come from persons who know better. But, as my father often said, “the squeaky wheel gets the oil.”
L:
“THIS is the correct way to handle that issue (on federal questions), and members of a purported class must establish indicia qualifying their status.”
Is that class certification the reason why district court decisions have nationwide, territorial jurisdiction? If so, I didn’t know that, and appreciate the explanation.
Hello Sam: I assert that this is the correct way to do it.
But no, -many district courts kind of sua sponte decide to order nationwide injunctions without doing this, and the partisanship therein is appalling.
See Rule 23 (FRCP)
The first case I know of is Califano v. Yamasaki,–SCOTUS affirmed a nationwide class action/injunctive relief under Rule 23 against the federal government’s actions regarding power to recoup social security overpayments.
p.s. always read your comments.
“(1) Boasberg’s TRO is for 14 days ,,,”
Lin, I like your careful approach and that you study the information carefully. Should we impeach over a TRO that is for 14 days? On its face that demonstrates reflexive action rather than a thoughtful one. However, if one believes such an attack can derive tremendous benefit, it can be worth it. But, if you attack the beast, you have to kill it or it comes back to haunt you forever.
(remember the Amalek)
Lin: “Although the demands for impeachment are obnoxiously extreme and inappropriate, nonetheless, such demands do call attention to judicial rulings that we commoners might not have appreciated or known of. I suspect that many if not most of those demands come from persons who know better. But, as my father often said, “the squeaky wheel gets the oil.”
I think that is essentially the point I have been making. I don’t imagine any of these impeachment proceedings is likely to result in a conviction in the Senate.
But it is the Democrats and radicals like this judge who set the precedent of inutile impeachment as a political tool…hoist by there own petard.
Their true value lies in rousing the public but, more importantly, the Court so that the judiciary might cure itself. If it doesn’t, multiple impeachments and public anger may suggest that others outside the judiciary may search for a cure. I would rather the Court act, but failing that I would like to see Congress strip district courts of the equitable powers they have learned to abuse. Perhaps we should suggest that to our Congressional representatives.
I want them removed. The judges have become lawless and drag rings out for years
NOPE!
OT
“Where did a bunch of goat herders get sophisticated missiles?”
– Senator Tom Cotton (R, AR)
_________________________________
That’s what I’m talkin’ about!
Freedom of Speech!
We need a way to stop district court judges from holding up an entire branch of government without any solid legal basis. These rulings, which stop constitutional action from one of the other two branches of government, should be immediately appealed with temporary injunctions against the *ruling*, not the administration, for further review. If the exec branch is acting within its authority, it doesn’t make sense to allow people to judge-shop and then rely on a lengthy appeals process to hold up the agenda of any administration.
In this case Trump was the one violating the law and the judge properly responded.
There are no longer any liberals on the left. You only grant unearned favor to leftists by referring to them as liberal. They are all leftists. There are no moderate leftists, just as there are no moderate Islamists. Regardless of the endonym or exonym, a leftist is a leftist.
hmmm…Jefferson’s concern about this very topic is worthy of our review. Ideologues judges out of control have weak and few checks. But one thing is clear, the constitution nearly cherishes the will of the people. Stall tactics by the left to allow these leftist, ideologue judges to slow down and interfere with an elected president’s agenda. The invasion doesn’t have to be horses and cannons, nor tanks and jets – but an invasion it has been – resulting in death and destruction of our people and institutions provided to serve the citizens of this great nation. Will be interesting to see how this plays out…as this is the ultimate “loop hole” in the US Constitution – an unchecked judiciary.