There has been much discussion about a lawsuit pending in Washington, D.C. wherein District Court Judge James Boasberg is presiding over a case filed by the American Civil Liberties Union on behalf of five Venezuelans swept up in a deportation action initiated by the Trump Administration. Much of that discussion is ill informed and false. Let's see if we can set the matter straight.
The Trump Administration has invoked the Alien Enemies Act to justify the deportations. This law, passed in 1789, gives the President powers with respect to the regulation, detention, and deportation of enemy aliens. Before now, it has been invoked three times – during the War of 1812, WWI and WWII. The ACLU's complaint argues that the Trump Administration did not properly invoke the statute, and further contends that its use here violates the Fifth Amendment's guarantee of due process. The case was randomly assigned to Judge Boasberg.
The plaintiffs asked Judge Boasberg to issue a Temporary Restraining Order to block their transport out of the country. It is common for parties to ask for a TRO to maintain the "status quo" while the court considers the merits of the case. A TRO is appropriate where a party may suffer "irreparable injury" if the challenged action proceeds. In this case, the five Venezuelans certainly face irreparable injury, given that they are going to be permanently deported absent court intervention.
This is exactly how our judicial system is supposed to operate. Outside of the invocation of the Alien Enemies Act, there isn't anything particularly unusual here. But that's not how the Trump Administration sees it. In a Truth Social post, President Trump called Judge Boasberg a "radical left lunatic" and said he should be impeached. Stephen Miller, President Trump's Deputy Chief of Staff had this to say: "You cannot have a democracy where single individual District Court Judges can assume the full total powers of the Commander in Chief." "A single District Court Judge cannot set policy for the entire nation." "Think about it from the standpoint of the Marxist left. What they'll do is they'll find a radical communist, somebody who hates our civilization and hates our way of life and they'll install them in some little known district court somewhere in the country that most people would never even think about . . . then Donald Trump gets into power, now that Judge assumes the full power of the presidency."
Let's take these statements one by one. We don't need to spend much time on President Trump's impeachment comment – Chief Justice John Roberts responded to that comment, noting, "[f]or 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."
Mr. Miller's comments completely misconstrue what Judge Boasberg is doing. He is not "assuming the powers of the Commander in Chief." He is not "setting policy." He is simply adjudicating a case and applying the law to the facts as presented. There are conditions to invoking the Alien Enemies Act. The ACLU contends those conditions weren't met here. The Constitution takes precedence over a statute. The ACLU contends that is the case here. The appropriate way to resolve these questions is to file a lawsuit in a federal District Court. I heard Stephen Miller in an interview state that the Alien Enemies Act doesn't provide for "judicial review." That is completely disingenuous. The Supreme Court first recognized the concept of judicial review Marbury v. Madison, a case decided in 1803, 14 years after the passage of the Alien Enemies Act.
Mr. Miller's rant about Judge Boasberg as a "radical communist" who "hates our civilization" is over the top even by Miller's standards. And it's completely out of bounds. Just because you disagree with someone doesn't give you license to make stuff up about them. I am not a fan of Stephen Miller, but that doesn't mean I can call him a cannibal. I mean, he may be. He's not provided any evidence to refute it, but I can't just say it. It doesn't work that way.
Folks a little older than me lived through the McCarthy era, when hyperbole and false accusations were all the rage. Let's not relive history in 2025. We are better than that.
