We are witnessing a constitutional system on the brink. The crisis started on Saturday, when James E. Boasberg, the chief judge of the U.S. District Court for the District of Columbia, issued an order that could hardly have been clearer: he told the Trump Administration to halt the imminent deportation of immigrants alleged to be Venezuelan gang members.
“You shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States—but those people need to be returned to the United States,” Boasberg instructed the Justice Department lawyer Drew Ensign over Zoom, a hearing called so hurriedly that the judge, away for the weekend without having packed his robes, apologized at the start for his informal dress.
“However that’s accomplished, whether turning around a plane or not embarking anyone on the plane . . . I leave to you,” Boasberg said. “But this is something that you need to make sure is complied with immediately.”
Federal judges are accustomed to being obeyed, but there is a new Administration in town, and it is dangerously and deliberately testing the limits of judicial power. As Boasberg was speaking, the planes were in the air; authorities had them continue on to El Salvador, which had agreed to jail the Venezuelans for a reported six million dollars.
“Oopsie . . . Too late,” the Salvadoran President, Nayib Bukele, posted on X the next morning, along with a laughing-tears emoji and a screenshot of a New York Post story about Boasberg’s order. Bukele was quickly retweeted by, among other Administration officials, Secretary of State Marco Rubio.
President Donald Trump on Tuesday demanded the judge’s impeachment, calling him “a Radical Left Lunatic.” At which point the Chief Justice of the United States, John Roberts, weighed in. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts wrote in a rare public statement. “The normal appellate review process exists for that purpose.”
There’s been talk for weeks now of an impending constitutional crisis. The term is imprecise, but there’s broad agreement that it covers the spectacle of a President outright refusing to comply with a court order. And here we are—although the Administration asserts otherwise. Now comes an uncomfortable question: Are courts—lacking, as Alexander Hamilton observed, “influence over either the sword or the purse”—capable of doing anything much in response?
J.G.G. v. Donald J. Trump, the case before Boasberg, places the questions of judicial authority front and center. It also goes to the question of fundamental fairness. At issue is whether the government, invoking wartime powers at a moment when the country is not at war, can, on authorities’ bare assertion, with no judicial review, take individuals who have been convicted of no crime and deport them to serve hard time in the prisons of another country. The case, even before the possibility of defying court orders arose, encapsulated some of the most dangerous legal tendencies of the Trump Administration: a hyper-aggressive conception of Presidential power combined with an eagerness to stretch statutory language beyond any reasonable bounds.
Trump has been threatening for months to use the Alien Enemies Act, of 1798, to expel Venezuelans who the Administration says belong to the Tren de Aragua gang, without the bother of going through legal proceedings. The law has been invoked just three times—during the War of 1812 and the First and Second World Wars—and you don’t have to be a diehard textualist to understand that it doesn’t apply in the current circumstances: it applies only when “there is a declared war between the United States and any foreign nation” or “any invasion or predatory incursion is perpetrated,” again, “by any foreign nation.”
Given how far afield Trump’s actions stray from the law, it was no surprise that Boasberg was willing to grant a temporary restraining order Saturday to keep the status quo in place. What was shocking was the Trump Administration’s willingness to so flagrantly violate his order. The Georgetown University law professor Marty Lederman, a Justice Department official during Democratic Administrations, wrote that he couldn’t recall “any historical precedent where executive branch officials have embarked on such an audacious action to anticipatorily stymie the proper functioning of a federal court—let alone to do so in the midst of a judicial hearing.”
So Boasberg—this time in robes—summoned the lawyers to an emergency hearing on Monday, to find out what had happened. What ensued was one of the most extraordinary exchanges I’ve witnessed in years of covering the courts. Boasberg, displaying remarkable forbearance, asked basic, seemingly innocuous questions, only to be met with stonewalling from the Justice Department.
“How many planes departed the United States at any point on Saturday carrying any people being deported solely on the basis of the proclamation?” Boasberg asked.
“Those are operational issues, and I am not at liberty to provide or authorized to provide any information on how many flights left,” Deputy Associate Attorney General Abhishek Kambli responded. (The answer, from reporters tracking the flights, appears to be three.) “The information that I am authorized to provide is that no planes took off from the United States after the written order came through.”
Boasberg was incredulous that the department was refusing to provide the information—even to Boasberg himself, in private. “Why are you showing up today and not having answers to why you can’t even disclose it?” he asked. “Maybe those answers are classified. . . . Maybe those answers are not classified, but they shouldn’t be for the public. Fine also. But you are telling me . . . you can’t even tell me which of those applies?”
That was just the start. Kambli contended that the Administration hadn’t violated Boasberg’s oral instructions, because it was only bound by the written order issued shortly afterward, which did not specify that planes had to be turned around.
No self-respecting judge would stand for that. When the jury returns a guilty verdict and the judge instructs the marshals to take the defendant into custody, the marshals don’t tell him or her to put it in writing. The notion that the Justice Department didn’t have to comply with what Boasberg said was, as Boasberg put it, “a heck of a stretch.”
Kambli also argued that Boasberg’s authority over the planes disappeared once they left U.S. airspace—a particularly cynical position because, as Boasberg tartly noted, the Administration knew, when it chose to have the planes take off, that Boasberg had scheduled a hearing at the exact same time to determine the fate of the detainees onboard.
Boasberg ordered the Justice Department to provide more explanation for why it wouldn’t explain itself. “I will memorialize this in a written order, since apparently my oral orders don’t seem to carry much weight,” he noted. When, on Tuesday, the department balked again at providing such “sensitive information” while Boasberg’s order to halt the deportations is on appeal, Boasberg gave it another twenty-four hours to come up with answers, to be submitted under seal and directly to him.
Just before its latest refusal, the Justice Department made an extraordinary request: that the Court of Appeals for the D.C. Circuit not only reverse Boasberg’s order but remove him from the case, because, it said, he had engaged in “highly unusual and improper procedures.” (I can confidently predict that this is not going to happen.)
The larger question of what powers Boasberg may have here is knotty, especially now that the detainees are imprisoned in a foreign country. “We will ask the judge to order the government to get these individuals back,” Lee Gelernt, a lawyer for the A.C.L.U. and the lead attorney on the case, said after the hearing. “There’s a very serious question about whether a federal judge can ever order a foreign government to do something, and the answer is generally no, but here I think we’re in a very different situation.” El Salvador, he said, is acting less like a foreign sovereign than like “a private prison holding these individuals, and it appears that the U.S. is paying for it.” (The A.C.L.U.’s co-counsel in the case is the public-interest group Democracy Forward, where my daughter is a lawyer.)
But the Administration is clearly spoiling for a fight. (It picked an unlikely target. Boasberg, a Yale Law School housemate of Supreme Court Justice Brett Kavanaugh’s, is a former homicide prosecutor and so well respected as a judge that he was tapped by the Chief Justice to serve on the Foreign Intelligence Surveillance Court.) “We’re not stopping,” Thomas Homan, Trump’s border czar, proclaimed ahead of Monday’s hearing. “I don’t care what the judges think.” Stephen Miller, a deputy White House chief of staff, tweeted at day’s end, “The President’s cabinet must be able to spend all their energies focused solely on delivering . . . for Americans—not spending untold hours trying to answer the insane edicts of radical rogue judges usurping core Article II powers. These judges are bulldozing our democracy.”
The White House press secretary, Karoline Leavitt, appeared on Fox News on Monday evening to underscore the supposed dangers of Boasberg’s intervention: “If we live in a country where the will of the American people is subverted by a single judge in a single court, we no longer live in a democracy.” Let me fix that for her. If we live in a country where judges’ orders can be ignored by an Administration bent on amassing unchecked power, we no longer live in a democracy. ♦
