Trump Demands SCOTUS Put Judge Boasberg In Timeout

This morning the Justice Department made its move to extraordinarily rendition the case of the kidnapped Venezuelans to the Supreme Court. It’s the latest wildly aggressive move by the government to overturn the ruling by Chief Judge James Boasberg, even as the president an his allies scream for the judge’s impeachment.

Last Saturday, the trial court issued a temporary restraining order barring the government from shipping hundreds of men to a notoriously brutal prison in El Salvador. The government takes the position that the president’s magical incantation “TREN D’ARAGUA NATIONAL SECURITY!” is all the legal justification he needs. Judge Boasberg takes the position that due process is still a thing.

Normally a temporary restraining order is not immediately appealable. But the Trump DOJ counters that any intrusion upon the prerogatives of the executive is an irreparable harm and grievous injury to the nation that demands immediate relief. That’s what makes this rendition extraordinary!

The case has been a hot mess since Saturday March 15, when the immigration bar, having gotten wind that the president intended to invoke the Alien Enemies Act of 1798 (AEA) to summarily deport migrants, raced into court seeking a TRO. The case was originally docketed as a habeas petition for six pseudonymous plaintiffs, but Judge Boasberg granted a TRO and class certification to all affected migrants and the habeas petitions were later dropped in favor of Administrative Procedures Act claims. At an emergency hearing convened that evening, Judge Boasberg ordered the DOJ to turn around any planes bearing class members. Instead the government handed hundreds of men over to the Salvadoran government, where they have been warehoused like battery hens, incommunicado from their families and lawyers ever since.

When asked to explain how this did not violate the court’s order, the DOJ smirked that the court’s oral rulings didn’t count, and certainly not when the planes were in international waters. After which they huffily asserted the state secrets privilege over the entire escapade, despite Secretary of State Marco Rubio posting a music video tweeted by Salvadoran President Nayib Bukele showing the prisoners being removed from the planes, having their heads shaved, and stacked like human cordwood. Days later, Homeland Security Secretary Kristi Noem filmed an Only Fans video of herself in the “secret” prison with the deportees as the backdrop.

The administration appealed the TRO to the DC Circuit, where Judges Karen LeCraft Henderson, Patricia Millet, and Justin Walker have been sitting for two weeks as the emergency panel. Yesterday they ruled against the government, with Henderson, the swing voter, smacking down the DOJ’s claim that not allowing the president to cast these men into hell TODAY is an irreparable harm greater than the one suffered by the men who are themselves cast into hell.

“The Executive’s burdens are comparatively modest compared to the plaintiffs’,” she wrote, noting the considerable reporting that “gang members” were identified solely on the basis of common tattoos.

“There is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm,” she added.

The only bright spot for the government was Judge Walker, who penned a dissent arguing that the plaintiffs APA claims were not APA claims at all. Rather they “sound in habeas,” and thus the court should simply dismiss them for having been brought in DC, not Texas where the men are being held. Walker was unmoved by the reality that the complainants are not asking to be released from custody, which is what it normally “sounds like” in habeas, but instead seek to remain in the custody of the US government rather than being handed over to Salvadoran prison guards.

The DOJ leaned hard into the “sounds in habeas” argument in its request for the Supreme Court to administratively stay Judge Boasberg’s TRO.

“Aliens subject to the AEA can obtain only limited judicial review through habeas,” the government insisted, citing no case in support of this sweeping claim other than Ludecke v. Watkins, 335 U.S. 160 (1948), which is coincidentally the same case they cited as evidence that the president’s AEA declarations are not subject to judicial review at all.

They padded this out with theatrical howling about dastardly trial courts usurping the president’s power through injunctive relief.

“Only this Court can stop rule-by-TRO from further upending the separation of powers—the sooner, the better,” they whined. “Here, the district court’s orders have rebuffed the President’s judgments as to how to protect the Nation against foreign terrorist organizations and risk debilitating effects for delicate foreign negotiations. More broadly, rule-by-TRO has become so commonplace among district courts that the Executive Branch’s basic functions are in peril.”

Chief Justice Roberts declined to issue an immediate administrative stay, inviting the plaintiffs to respond by Tuesday morning.

JGG v. Trump [Trial Docket via Court Listener]

JGG v. Trump [Circuit Docket via Court Listener]

Trump v. JGG [SCOTUS Docket]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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