Presidential Power of Deportation

Boasberg is not a stranger to using unconstitutional judicial actions to go after Trump

Boasberg is not a stranger to using unconstitutional judicial actions to go after Trump. In his role as the head of the FISA Court he made sure that only weak penalties were applied to a member of the FBI’s Crossfire Hurricane team which was directly connected to the FBI’s unlawful actions associated with the Russiagate false attack against the President, as well as ensuring a renewal of the FBI’s FISA powers

The Trump administration sent three planes carrying more than 200 illegal criminal aliens out of the United States and while the planes were in the air Boasberg issued an order calling for President Trump to turn the planes around. Trump did not recall the flights. The ruling came from a lawsuit launched by far-left groups including the American Civil Liberties Union (ACLU) and Democracy Forward who rushed to court in a desperate bid to shield illegal aliens from deportation. 

However, the organizations bringing the lawsuit lack standing which would require that those bringing the lawsuit were directly injured by Trump’s actions. In an attempt to achieve standing they named in the lawsuit the illegal aliens as plaintiffs, but the Eleventh Amendment of the United States Constitution strictly forbids the federal courts from taking any cases by citizens or subjects of a foreign state.

The argument against Trump was that he was invoking the Alien Enemies Act of 1798 in an unconstitutional manner because the wartime measure has been only used historically during wartime, and the removal of hostile foreign nationals is “unprecedented” and “unlawful” during peacetime. However, their argument is a false one, which I will explain in a moment.

The court’s ruling temporarily called for a halt of deportations for the individuals named in the lawsuit and was designed to set the stage for an extended legal battle that would prevent all deportations while the matter was being settled in the federal court system.

From a constitutional viewpoint Judge Boasberg has not only stepped beyond his authorities by taking the case in first place because the Eleventh Amendment forbids federal courts from taking cases with citizens or subjects of a foreign state as plaintiffs, but also as a member of the judicial branch he has illegally interpreted the law in question in a manner that is not within the text of the law.

The law does not require actions taken to deport hostile foreign nationals only during wartime (which for some may even be defined as only being appropriate if a declaration of war is in place). In 1798 when the Alien Enemies Act went into effect hostile foreign nationals under the purview of that law were being removed from the United States and at the time a state of war for the United States was not in place. 

In short, it was a period of peacetime. War was being waged in Europe between European Powers, and there were fears of its influence spilling over upon American shores, but the United States was not at war at that time. We were in between the Revolutionary War and the War of 1812, and the two Barbary Wars were not fought until 1801-1805 and 1815-1816. So, at the time of the establishment of that law hostile foreign nationals were being deported during peacetime making the very basis of the argument that what Trump was doing was “unprecedented” and “unlawful” a false argument at its core. The argument at the time was primarily regarding Tories, who were those who were still loyal to the British Empire.

Constitutional provisions do not apply equally to all people in the United States

The ruling was also unconstitutional regardless of whether or not the Alien Enemies Act was being used improperly because all of those being deported were undeniably in the country illegally. Unlawfully crossing into the United States without navigating proper immigration procedures according to federal immigration laws that are on the books is a crime, and the President of the United States has the authority to deport those individuals no matter what. That is the reason for the existence of ICE and the Border Patrol. The Constitution grants the issue of immigration to the federal government and the job of the President, using his executive departments and agencies, is to carry out the laws of the United States. Immigration law states that unlawful entry into the United States is a crime, and therefore the President’s job is to execute those laws by deporting the persons who broke federal law when they entered into the country unlawfully.

A part of the argument being used by those using lawfare against President Trump regarding immigration is that while those “migrants” may be “undocumented,” in order to deport them they have a right to the due process of law. The Constitution is, after all, supportive of due process and the concept that everyone is “innocent until proven guilty.”

That flawed argument, however, fails to recognize that there is a difference between those who fall under the full jurisdiction of the United States (citizens), those who are in the United States under conditional terms (holders of documents like a resident alien card, student visa, or other kind of visa) and those who have entered the country unlawfully. Constitutional provisions do not apply equally to all people in the United States. The Preamble of the Constitution, after all, tells us that the document was presented for “We the People of the United States,” not in the United States. Naturalization and migration is addressed in Article I, Section 8 and Section 9, giving to Congress the authority to make the rules regarding those issues through legislation, including who may be prohibited from entering and what the protocols regarding immigration would look like. Congress has done that. In Article II of the Constitution the President is “vested” with the executive power, and is called to “faithfully execute the laws of the United States,” which is accomplished through the various departments and agencies that fall under his supervision.

The Judicial Branch also has no enforcement authority, so there is no penalty for “defying the courts” by the President

The federal bureaucracy that operates inside the executive branch is the hired help who are in place to serve the President and carry out the instructions of the President of the United States regarding executing the laws of the United States which is what his executive orders are all about. The courts, however, in the Constitution have been given no authority regarding how the President runs the executive branch. Aside from a few congressional powers which enable the Senate to ratify treaties and confirm appointments, and for Congress to use their legislative powers to create or decommission particular agencies or departments, the operations of the executive branch belongs completely to the President of the United States. If he wants to increase or reduce the number of personnel, choose how much of the appropriated funds actually get spent, and require them to come to work rather than work from home that is completely up to the President. The courts have no authority whatsoever to micromanage his job, or request that he report to the courts why he did something or produce the evidence he may or may not have that reveals if the deported aliens are murderous criminals or not.

The Judicial Branch also has no enforcement authority, so there is no penalty for “defying the courts” by the President. The enforcement arm of the federal courts is the executive branch. If the President chooses to tell a judge to pack sand, and he’s going to do things inside his executive branch the way he wants to regardless of their activist judicial rulings, he is completely legally and constitutionally entitled to do so. Thomas Jefferson established the precedent in 1803 when the United States Supreme Court ruled he was required to deliver a commission for a judicial seat to William Marbury. President Jefferson defied the court’s decision, and then proceeded to work with Congress to repeal the Judicial Act that Chief Justice John Marshall’s Supreme Court was using as a basis of their ruling. A third of a century later the United States Supreme Court ordered President Andrew Jackson not to proceed with his plans of relocating Indian tribes from the Southeast United States to Oklahoma, but Jackson responded, “John Marshall has made his decision. 

Now, let’s see him enforce it.” In both cases when the President of the United States “defied” the courts, there were no impeachment articles filed against the President, nor could the courts do a thing about what the President was doing. The courts may not, under no circumstances, dictate to the President how to carry out his job as President of the United States. If he is acting in a manner that is outside the constitutionality of his office, then it is up to Congress to impeach him, or up to We the People and the States to make sure he’s not reelected. Otherwise, how the President carries out the duties of his office is up to him.

For his unconstitutional ruling and attempts to interfere with the Office of the President of the United States, Judge Boasberg should be impeached and removed from office upon conviction by the Senate. I am not the only one to call for his impeachment. President Trump and members of Congress have voiced the same. 

In fact, those calls for the removal of Boasberg from the federal bench have led to a response from the Supreme Court’s Chief Justice John Roberts, who issued a statement. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.” The problem is, the call for impeachment of Judge Boasberg is not because he simply disagreed with President Trump; Judge Boasberg violated the Constitution which is not only maladministration of his office, but a violation of the oath he took to defend and protect the same. Trump is operating constitutionally, and Judge Boasberg is not, and the latter should be impeached and removed from the federal bench for his unconstitutional actions.