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.”
I have great respect for Mr. Turley as a very intelligent man and a liberal who still acknowledges that certain principles must override the passions of the moment. I enjoy his television appearance to opine on legal issues, and I think he would be a fun (if demanding) teacher to take a course under. And I am quite aware that conviction on an act of impeachment requires a two-thirds vote in the Senate, the composition of which makes it literally impossible to convict anyone who supports or acts in support of a liberal agenda. His argument that the sole appropriate response to rogue judges is “appeal to a higher court”, though I suppose this must be the default position of anyone who is a member of the legal-judicial “fraternity”. Here are some of the problems with this as the sole response to a judicial order, be it reasonable OR as “off the wall” as some of the satire found on “The Onion”.
(1) The ruling stands and is in force until a higher court orders the ruling to be held in abeyance until dealt with by the appeal court, unless it is stayed by the issuing judge pending appeal. If it is not stayed, regardless of how facially absurd it may or the damage it may cause it stands unless ignored.
(2) The judge issuing a bizarre or overreaching ruling has complete immunity against claims for disruption, harm, financial loss, or additional legal expense to parties affected by his ruling. (Example: if a judge declares an alleged offender must be given bail or otherwise released, and this malefactor hunts down his complaining victim or cooperating witness and shoots one or both of them squarely between the eyes within 6 hours of being released, there is no liability on the part of the judge, and the family of the deceased will possibly get a sympathy note, from someone, maybe, if they’re lucky?)
(3) Even if a bizarre or overreaching ruling is eventually overturned on appeal, somebody is out additional, unnecessary, and non-reimbursable expense of hiring an attorney for the appeal. (Remember the barrister’s motto: “No one makes money, till everyone makes money.”) A lot of us don’t have the financial resources to hire a first class appellant’s lawyer at $800/hr to rescue us from the effect of ruling by a judge that is not justified in law and should never have been made, or if the contested issue involves less that the multiple thousands a successful appeal costs. (If a system in which you can have all the justice you can afford really to be aspired to?)
So, while I agree that impeachment is a hammer ill-suited to causes more needful of a scalpel or even an axe, how would Mr. Turley suggest that we deal with the problems as listed above that a “bozo” [pardon the use of slang] judges can, and do, routinely cause? It sounds very like the suggestion that the victim of a bend over and grab your ankles assault should remain silent because, after all, K-Y jelly was used.
Common sense flew out the window, pushed by the wind of politics and way too much hot air.
Is our Constitution apolitical? I compare it to a tree, an ancient live oak which has weathered so many storms. When it was young, branches (laws) grew out to protect anyone (American citizens). Well meaning gardeners (Congress) trimmed the branches. Dead limbs were removed. The roots were watered and fertilized. It grew so high. It looked magnificent! Anyone taking shelter under its branches felt safe. We were protected.
Then weeds (politics) grew up around it. Instead of removing the weeds, gardeners pruned the tree. Now that once majestic source of protection resembles a bonsai scrub, hidden and starved by all the weeds.
We see the damage and call for new gardeners (vote), but the new gardeners were taught by the old.
Oh, look! This weed has a pretty flower! Let’s prune it to replace the oak. The flowers produce seeds which spread across America. The old oak is forgotten.
Likewise America’s Republic is forgotten. The voices debating her worth were fertilizer for the oak. Now they feed the weeds. How long before someone decides to plant a new tree? The old oak has only a few branches left and gardeners are eager to remove them.
I am so done with the constant defense of a system that has become an enemy of the will of the people, a tyrannical system that usurps power from the other two branches of government, and one that has evolved into a weapon utilized by the darkest elements of power. The judiciary is out of control. And Professor Turley blindly defends it as though this is some sort of academic exercise or collegiate debate club. Judges are now activists. They are driven by agenda, not fairness or Justice. It’s time to put a stop to it. The Constitution grants us the mechanisms to do so. Let’s do it!
As many on the far right say, you don’t like America, you can leave.
Why is that a “far right” view? It seems reasonable able that if one dislikes their circumstances then the appropriate response is to change them. The alternative is that the majority change its position to accommodate the minority. When that happens a nation loses its identity. If you don’t like McDonalds there is always Wendy’s or Burger King or a host of others to choose from.
Professor Turley,
Do you agree with Mr. Davidson’s arguments in his Federalist essay https://thefederalist.com/2025/03/06/if-the-supreme-court-is-going-to-ignore-the-constitution-trump-should-ignore-the-supreme-court/ and if you don’t, then why not? They make perfect sense to me. These activist, anti-Constitutional judges who almost all have glaring conflicts of interest in their families etc. are trying to destroy the separation of powers doctrine so that only unelected, anti-democratic forces, i.e. the unelected bureaucracy and the unelected judiciary make all the influential decisions across government, n’est-ce pas?
I wouldn’t impeach him. I’d just disqualify him on conflict of interest grounds and then send him up for ethics violations. His daughter works the NGO that defends this gangland scum. No disclosure of it by Black Rock .. er … Black Robe either. Laura Loomer found out.
Since you haven’t posted about CJ Roberts’ comment yet, please allow me to post my take here, Professor:
Roberts is absolutely WRONG.
The decision to appeal or not to appeal is a totally different process from impeachment.
In the United States, impeachment is a political process vested solely in Congress, and its decisions are not subject to judicial review.
The President is free to appeal the decision while also encouraging Congress to impeach.
The Constitution grants the House of Representatives the sole power to impeach (Article I, Section 2) and the Senate the sole power to try impeachments (Article I, Section 3). The judiciary has no formal role in reviewing or overturning the outcome of impeachment proceedings.
This principle was notably affirmed in the 1993 Supreme Court case Nixon v. United States (not to be confused with President Richard Nixon).
In this case, Walter Nixon, a former federal judge who had been impeached and removed by the Senate, argued that the Senate’s process violated the Constitution.
The Supreme Court ruled unanimously that impeachment is a “political question” and that the judiciary has no authority to interfere with Congress’s constitutional prerogative in this area. Chief Justice William Rehnquist, writing for the majority, emphasized that the Constitution gives Congress the final say, and judicial review would undermine the separation of powers.
So, while the process must follow constitutional guidelines (e.g., a two-thirds vote in the Senate to convict), the substance and outcome of impeachment proceedings are effectively unreviewable by the courts. Congress indeed has the final authority here and the Supreme Court has no role in the process other than to be used to officiate the proceedings.
Professor Turley predictably doesn’t mention Marjorie Taylor Greene filed impeachment articles against Biden on his second day in office & Republicans filed 14 other impeachment articles against Biden. All justified, right JT?
Trump was impeached for blocking Congressionally mandated military aid to Ukraine while pressuring Zelensky to open an investigation on Trump’s political opponent. 10 House Republicans & 7 GOP Senators voted to impeach Trump for inciting an insurrection on January 6, 2021 in an attempt to prevent the certification of Trump’s political opponent’s Electoral College victory.
Three weeks before the 2020 election, Trump publicly pressured Bill Barr to arrest his political opponent. “Where are all of the arrests?…Biden shouldn’t be allowed to run.”
Hardly surprising how often Turley covers up the Republicans use of impeachment investigations and charges against their political opponents.
Roberts is clearly making it worse for him and the entire federal judiciary.
https://twitchy.com/amy-curtis/2025/03/18/john-roberts-responds-to-trump-judicial-impeachment-n2410028
So the impeachments do work.
https://www.newsweek.com/john-roberts-blasts-donald-trump-rare-statement-2046592
Roberts is annoyed with Trump but now that we have his attention he might notice the multiple district court judges jumping around like a herd of kangaroos on cocaine.
No doubt he is smart, but sometimes he seems an idiot savant smart who occasionally leaves the savant part at home when he goes to the office.
If the Court doesn’t rein in these rogue judges it will end up with a genuine crisis caused by its own cowardice.
We can’t continue government run by lower level judges picked by judge-shopping radicals.
I still like having Congress strip these judges of much of their jurisdiction. Now some in Congress are discussing that.
If Roberts prefers whining to acting the problem may be solved for him.
This may tell us more about the judge’s legal philosophy, such as it is. [His activist daughter]
https://www.thegatewaypundit.com/2025/03/boom-laura-loomer-uncovers-enormous-taxpayer-funded-conflict
Newt Gingrich makes the same point I have been making. If the Court doesn’t act the problems will be left to Congress and the President to solve, probably in ways that will really give Roberts something to whine about.
https://x.com/newtgingrich/status/1902035926378840540
I can’t find the exact quote. But one I’ve seen attributed to Voltaire, paraphrased, is something like, ‘It is good to occasionally impeach one Judge to encourage the others.’
Yes, Voltaire commenting on the execution of British Admiral Byng on his own quarterdeck.
Roberts turned political after deferring to the process. Now Boas is implementing the endless TRO and Roberts refuses to intervene! This is a huge stain on SCOTUS now amplified by SOTO chiming in politically as well. R & S should both turn in their robes and run for President- we already know the outcome!
Mr. Turley should be writing for the New York times with how well he “both-sides” this issue. Turley conveniently omits that Trump himself has called for the impeachment of the judge, and in a span of two months, Republicans have called for the impeachment of no less than 5 judges. Not quite the same as Dems asking for the “impeachment” of Elon Musk. Just remember, kids, Turley is afraid of telling his readers the whole truth because he knows what you want to read, and fears you will stop reading if he gives you the unvarnished truth.
Sadly , this is true .
I once respected and looked forward to reading this blog .
No more.
Regardless of what someone may think of Trump, it is improper for a judge to make public comments about a pending case or whether a separate branch of government (the legislative branch in the case of impeachment) can take action. We have separation of powers for a reason. Roberts is way out of line. His job is to remain silent unless and until the case comes before him and then he can write an opinion on the merits of the case as he sees it. Now if the case makes its way to the US Supreme Court Roberts will have to recuse himself.
“The finest judicial system in the world”?
Are you that delusional? Can you not see how utterly, utterly corrupted it is by politics? The very idea that not just prosecutors, but even judges, are routinely elected? Trump suffered from just that corruption leading to politically motivated prosecutions. It is so evident to anyone who is not American that your legal system is as broken as any Stalinist system of show trials. The only saving grace at the moment seems to be the Supreme Court.
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.
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So fine in fact, we have secret courts enabling political plots against elected leaders and doing precious little about it but no matter.
District Court Judge James Boasberg has shown himself to be a political hack along the lines of Judge Sirica. He constantly uses sledgehammers when tap hammers would work and his bias is on display occasionally. But he’s not the problem. The problem is the crazy power of one judge in one picayune courtroom to bring the machine of national government to a grinding halt. I’m an equal dignty kinda guy. If you want to stop the Executive or the Legislative branches you go to the other heavywight in the room, SCOTUS. You don’t have an unelected-to-anything guy (or gal) with a myopic view presented by some myopic lawyers about the state of national affairs. This nationwide injunction power is found nowhere in the Constitution. It’s unDemocratic and it’s stupid. If the issue is that important let that priestly order of haruspices in DC split the divine chickens and decide it. At the least the politics there are about equal. Oh right, the politics never matters.
Abolish the DC district courts and the DC Court of Appeals. They seem to have assumed the status of ancient gods.
At least now we can clearly see what Obama/Biden intended with his judicial appointments.
We may have, at one time, though I have the uncomfortable feeling that too many times a man in court can expect to get all the justice that he can afford, and judges have been co-opted, compromised, and in some cases, bought. Prosecutor can hide exculpatory evidence and have no fear of being subjected to the same penalty they seek to impose upon those in their grip. What possible rationalization can justify an FBI agent admitting that he “fudged facts” given to the FISA court, and then a like previous alleged domestic terrorist, remaining “guilty as hell, free as a bird!”