By JON FAULKNER
Last week, invoking his wartime authority under the 1798 Alien Enemies Act, President Donald Trump bypassed the courts and deported137 alleged Venezuelan members of the Tren de Aragua gang. Almost immediately, Judge James E. Boasberg, the chief judge for the U.S. District Court in D.C., issued a restraining order instructing President Trump to “turn the plane around” that was deporting illegal aliens with known criminal violations out of the country.
The incident has sparked a constitutional battle over the limits of judicial power over the president. The immediate question is whether U. S. District Court judges have the power to constrain the president by issuing nationwide injunctions or other rulings that seek to intervene in the execution of executive branch prerogatives or duties.
Some legal authorities regard Trump’s actions as flaunting the rule of law, while Trump and others argue the law is not fixed in this regard, and that Americans are tired of illegal immigrants seeking delay and refuge from an over-burdened court system. Others point to foreign manipulation and financing of the entire immigration wave, which they view as intentional and designed to destabilize our national security.
The Alien Enemies Act extends broad powers to the president that some argue he already constitutionally possesses, but which powers historically have only been invoked during wartime — most notably during WWII to justify imprisonment of Japanese Americans.
Alaska appellate attorney and Substack author Ralph Cushman is convinced federal judges do not have the power Judge Boasberg has asserted. In the first place, he says, only the Supreme Court has (“original”) jurisdiction to even hear such a case. Article III, Section 2, of the Constitution says:
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
“Original jurisdiction” means it must be filed in that court.
And even if the Supreme Court does hear such a case, says Cushman, it does not have the power to issue injunctions or mandates against the president or his (cabinet) ministers. Otherwise “the executive power” is not “vested in the president,” — it is vested in judicial overseers.
Finally, even if the Supreme Court rules that a presidential action is unconstitutional, Cushman contends, it still cannot issue injunctions or mandates. Rather, it is up to the Senate to impeach him for it. If the Senate does not see fit to convict in impeachment, then the president is free to continue to execute the laws of the United States as s/he sees fit. The framers of the Constitution never intended for the federal courts to have the authority to order the president or his ministers around. National security and the well-being of the country do not have time for such interference with their executive duties.
Similarly, says Cushman, U. S. District Judge Reyes was without jurisdiction to order the Department of Defense to admit transsexuals. If a House member believes the president is breaking some law by banning transsexuals from military duty, s/he can float an article of impeachment.
But impeachment is all the president needs to, and should need to, worry about. Republicans have lately been criticizing the federal courts for issuing “nationwide injunctions” against the president, as if local injunctions would be permissible.
But they aren’t, Cushman contends, because the courts do not have jurisdiction to enter injunctions restricting the president’s exercise of his powers as commander in chief, or as executive.
American are divided on the subject of whether our Constitution should be interpreted by the courts using a narrow “strict constructionist” view of the original intent of the framers, or using a broader context that emphasizes present-day social, political and economic objectives.
A recent Washington Post story outlined Trump’s legal argument to the court, concluding that,“Years of experience have shown that the Executive Branch cannot properly perform its functions if any judge anywhere can enjoin every presidential action everywhere.”
The same article quotes U.S. Attorney General Pam Bondi as calling Boasberg’s order an “intrusion on the president’s authority…These are foreign terrorists. The president has identified them and designated them.”
While some legal experts criticize Trump for challenging a long-standing balance of power between branches of government, others believe its overdue. Regardless, there is consensus that the issue is ripe for review by SCOTUS.
“This issue has never been properly litigated,” states Cushman. “The encroachment by the Judiciary into the Executive branch has been slow and steady over time, but there is little case law to reference. Trump’s push-back to the federal courts is entirely justified — by the Constitution.”
The issue of judicial authority has broad implications for the executive, especially in the area of immigration. Trump’s recent Supreme Court filing urges SCOTUS to sanction Trump’s ban on birthright citizenship at a state level, but Trump’s ban is awaiting clarification by the high court.
Jon Faulkner is the president of Alaska Gold Communications, the parent company of Must Read Alaska.
“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction.” The director of ICE is not an ambassador, public minister, or consul under Article III, Section 2. Therefore, the Supreme Court does not have original jurisdiction.
Judge James E. Boasberg works with Chief Justice John Roberts to subvert the Constitution and governance of the US government.
Roberts and Boasberg need to be impeached. The Republican Congress will not likely move to restore Constitutional governance as the majority are simply corrupt, donor owned political prostitutes.
The other alternative the Trump Administration has is to simply ignore the Judicial junta’s attempts to supress the essential citizen based revolution against tyrannical usurpation of our nation.
How many armored divisions does “Justice ” Roberts control? None? Then the problem is solved.
The public has one opportunity to end the incompetent bureaucratic tyranny which dictates policy for this country, and it’s a very short window of time. It’s all in now or accept the complete demolition of a Republic or semblance of freedom and prosperity.
They are illegal aliens, that are in our country illegally. At what point did they gain so many rights that we are wasting our resources and time protecting them??? Make it easy for them to leave and be eligible to return following our laws. Otherwise no judge or the ACLU should be protecting any illegal aliens. They complain that they are so backlogged in cases that I don’t see how or why they are even involved with illegals.
We’ve all heard how in the United States we have three co-equal branches of government. The left says this frequently, while at the same time telling us that the courts are superior to the Congress branch and the Executive branch. How could one branch be superior to the other two while being equal?
Understanding the roles of each branch of government is key to understanding how our government is supposed to function.
The left purposely tries to distort the roles of each branch and places whichever branch they control as superior to the other(s) as they deem fit.
The executive (presidential) branch should have the most influance for many reasons, one, the president is elected by a national vote. Judicial should refrain from legislating and the House and Senate positions on national security are secondary to the presidents especially at a time the U.S. is attacked or over ridden by illegal foreign border crossers.
I agree, the lefts definition is one of connivance.
There’s only one branch of government that can fire the others. The judiciary cannot fire a member of the other branches, likewise the executive cannot fire a member of the other branches, only Congress can fire a member of the other branches including their own. Congress, as the direct representatives of the people are supposed to have more power than the executive and the judiciary, remember that the executive is elected through the Electoral College and not by popular vote and thus not a direct representative of the people. Each branch is supposed to have their respective responsibilities and duties, unfortunately Congress has ceded their power over the years to both the executive and judicial branches. Congress is tasked with the power of the purse, with declarations of war, with writing laws, and numerous other responsibilities that they have allowed the other branches to assume. The judiciary is supposed to be the weakest of the branches of government and yet in many ways they’ve become the most powerful, this is not how our system of government was designed.
I see your point.
The president should and believe will retain power to deport and the USSC likely I believe will rule in his favor which is headline news today.
Right now, the Hispanic/Indian Central and South American illegal border crossers are winning a non-violent war by merely softening the U.S. population base with they’er own.
I am studying what areas the president can veto and by what % figure.
I will contend that though the president is elected by the electoral college and I do agree with you on that, except that each states electoral vote is based on that states popular vote individually.
I see an evolving U.S. government because of the changes of circumstances, new laws by the legislative that our founders may not have clearly seen coming.
Birthright citizenship is now being contemplated by the high court.
Haul them out of this country now
Pulling people off of the streets without a judicial hearing required by law is how Hitler got started
By employing Godwin’s Law Frank loses any credibility in the discussion, once again.
It is long past time for the Supreme Court, and ALL judges to return to administering justice by upholding the Constitution instead of making judgements based on “social considerations” or how they “feel” about a case.
dang east coast elitist snobs from know it all, right? lets just let the farmers and hard working folks do it all. they don’t work hard enough already. lets us signal to keep in touch
well, let me lay down on the Flag on the streets of Paris.
The people in question are here illegally. Why should they have any protection under our laws?
8 USC 1324
1324. Bringing in and harboring certain aliens
(a) Criminal penalties
(1)(A) Any person who-
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
(v)(I) engages in any conspiracy to commit any of the preceding acts, or
(II) aids or abets the commission of any of the preceding acts,
shall be punished as provided in subparagraph (B).
(B) A person who violates subparagraph (A) shall, for each alien in respect to whom such a violation occurs-
(i) in the case of a violation of subparagraph (A)(i) or (v)(I) or in the case of a violation of subparagraph (A)(ii), (iii), or (iv) in which the offense was done for the purpose of commercial advantage or private financial gain, be fined under title 18, imprisoned not more than 10 years, or both;
(ii) in the case of a violation of subparagraph (A)(ii), (iii), (iv), or (v)(II), be fined under title 18, imprisoned not more than 5 years, or both;
(iii) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) during and in relation to which the person causes serious bodily injury (as defined in section 1365 of title 18) to, or places in jeopardy the life of, any person, be fined under title 18, imprisoned not more than 20 years, or both; and
(iv) in the case of a violation of subparagraph (A)(i), (ii), (iii), (iv), or (v) resulting in the death of any person, be punished by death or imprisoned for any term of years or for life, fined under title 18, or both.
(C) It is not a violation of clauses 1 (ii) or (iii) of subparagraph (A), or of clause (iv) of subparagraph (A) except where a person encourages or induces an alien to come to or enter the United States, for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officers of such denomination or organization, to encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least one year.
(2) Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs-
(A) be fined in accordance with title 18 or imprisoned not more than one year, or both; or
(B) in the case of-
(i) an offense committed with the intent or with reason to believe that the alien unlawfully brought into the United States will commit an offense against the United States or any State punishable by imprisonment for more than 1 year,
(ii) an offense done for the purpose of commercial advantage or private financial gain, or
(iii) an offense in which the alien is not upon arrival immediately brought and presented to an appropriate immigration officer at a designated port of entry,
be fined under title 18 and shall be imprisoned, in the case of a first or second violation of subparagraph (B)(iii), not more than 10 years, in the case of a first or second violation of subparagraph (B)(i) or (B)(ii), not less than 3 nor more than 10 years, and for any other violation, not less than 5 nor more than 15 years.
(3)(A) Any person who, during any 12-month period, knowingly hires for employment at least 10 individuals with actual knowledge that the individuals are aliens described in subparagraph (B) shall be fined under title 18 or imprisoned for not more than 5 years, or both.
(B) An alien described in this subparagraph is an alien who-
(i) is an unauthorized alien (as defined in section 1324a(h)(3) of this title), and
(ii) has been brought into the United States in violation of this subsection.
(4) In the case of a person who has brought aliens into the United States in violation of this subsection, the sentence otherwise provided for may be increased by up to 10 years if-
(A) the offense was part of an ongoing commercial organization or enterprise;
(B) aliens were transported in groups of 10 or more; and
(C)(i) aliens were transported in a manner that endangered their lives; or
(ii) the aliens presented a life-threatening health risk to people in the United States.
(b) Seizure and forfeiture
(1) In general
Any conveyance, including any vessel, vehicle, or aircraft, that has been or is being used in the commission of a violation of subsection (a), the gross proceeds of such violation, and any property traceable to such conveyance or proceeds, shall be seized and subject to forfeiture.
(2) Applicable procedures
Seizures and forfeitures under this subsection shall be governed by the provisions of chapter 46 of title 18 relating to civil forfeitures, including section 981(d) of such title, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in that section shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Attorney General.
(3) Prima facie evidence in determinations of violations
In determining whether a violation of subsection (a) has occurred, any of the following shall be prima facie evidence that an alien involved in the alleged violation had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law:
(A) Records of any judicial or administrative proceeding in which that alien’s status was an issue and in which it was determined that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(B) Official records of the Service or of the Department of State showing that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(C) Testimony, by an immigration officer having personal knowledge of the facts concerning that alien’s status, that the alien had not received prior official authorization to come to, enter, or reside in the United States or that such alien had come to, entered, or remained in the United States in violation of law.
(c) Authority to arrest
No officer or person shall have authority to make any arrests for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.
(d) Admissibility of videotaped witness testimony
Notwithstanding any provision of the Federal Rules of Evidence, the videotaped (or otherwise audiovisually preserved) deposition of a witness to a violation of subsection (a) who has been deported or otherwise expelled from the United States, or is otherwise unable to testify, may be admitted into evidence in an action brought for that violation if the witness was available for cross examination and the deposition otherwise complies with the Federal Rules of Evidence.
‘https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1324&num=0&edition=prelim