Author: Frank V. Vernuccio, Jr.

Among the most contentious disputes of both the first and second Trump terms has been the role of the courts.

Democrats have attempted to restrain presidential policies they disapprove of not just through normal political and legislative means, but unconventionally, through the court systems. In particular, they have succeeded in “gaming the system” through judge-shopping, ensuring that a judge known to be sympathetic gets the particular case.  

The issues frequently revolve on somewhat strained interpretations of the day-to-day functions of the executive branch.

In response, Senator Mike Lee (R-UT) has introduced the “Restraining Judicial Insurrectionists Act of 2025,” which establishes a three-judge panel to swiftly review injunctions or declaratory relief against the President of the United States and the Executive Branch, with quick appeal to the Supreme Court. This legislation comes in the wake of several decisions by district court judges usurping the role of the Chief Executive from President Donald Trump and attempting to thwart the will of the American people who elected him. 

  According to a release from Senator Lee, the bill would stop blanket injunctions from sabotaging President Trump’s legitimate constitutional authority as Commander in Chief

 “America’s government cannot function if the legitimate orders of our Commander in Chief can be overridden at the whim of a single district court judge,” said Senator Lee. “They have presumed to run the military, the civil service, foreign aid, and HR departments across the Executive Branch—blatantly unconstitutional overreach. This legislation will create a judicial panel to expedite Supreme Court review of these blanket injunctions, preventing unelected radicals in robes from sabotaging the separation of powers.”

The bill amends 28 USC 2284 to state that any action commenced against the executive seeking injunctive or declaratory relief against the Executive will go to a three-judge district court.

Next, it requires that upon filing any covered action, the district judge who received the complaint and/or motion for preliminary injunction will refer the matter to the Chief Justice. The Chief Justice will then be required to select three judges in active service to preside over the case.

Additionally, the bill requires that a majority of the judges must agree to issue any form of relief, preliminary or permanent.

Finally, because this is a three-judge district court, all orders are directly appealable to the Supreme Court without discretion—so they must take up the case. 

A companion bill, The “H. Rept. 119-40 – NO ROGUE RULINGS ACT OF 2025.” Has been introduced in the House of Representatives. Similar to Senator Lee’s proposed legislation, The Rogue Rulings measure states that “no United States district court shall issue any order providing for injunctive relief, except in the case of such an order that is applicable only to limit the actions of a party to the case before such district court with respect to the party seeking injunctive relief from such district court and non-parties represented by such a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.

It also states that “If a case is brought by two or more States located in different circuits challenging an action by the executive branch, that case shall be referred to a three-judge panel selected pursuant to section 2284, except that the selection of judges shall be random, and not by the chief judge of the circuit. The three-judge panel may issue an injunction that would otherwise be prohibited … and shall consider the interest of justice, the risk of irreparable harm to non-parties, and the preservation of the constitutional separation of powers in determining whether to issue such an order…An appeal of an order granting or denying injunctive relief pursuant to subsection (b) may lie to the circuit embracing the district or to the Supreme Court, at the preference of the party.”

While Congress cannot regulate the activities of the United States Supreme Court, which is a co-equal branch, it does have the power to direct the jurisdiction of lower federal courts. As noted by Justia district courts “subject to “exceptions and regulations” prescribed by Congress, and the jurisdiction of the inferior federal courts is subject to congressional prescription. Additionally, Congress has power to regulate modes and practices of proceeding on the part of the inferior federal courts. Whether there are limitations to the exercise of these congressional powers, and what the limitations may be, are matters that have vexed scholarly and judicial interpretation over the years, inasmuch as congressional displeasure with judicial decisions has sometimes led to successful efforts to “curb” the courts and more frequently to proposed but unsuccessful curbs. Supreme Court holdings establish clearly the breadth of congressional power, and numerous dicta assert an even broader power, but that Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court.

Illustration: Pixabay

Nearly half of Russia’s regional leaders are implementing a new policy aimed at increasing the country’s birthrate by paying underage girls to become pregnant earlier than planned. In an attempt to reverse Russia’s declining fertility rate, officials are pushing the idea that it is these girls’ duty to the country to get pregnant, even if it is outside of marriage. The Kremlin is also restricting access to abortions. Earlier this year, The Moscow Times started reporting on the declining demographic numbers last fall.  “Each year, Russia sees more than half a million more deaths than births, meaning that any growth would come from immigration, which faces unpopularity among a rising tide of xenophobia in Russia,” says Paul Goble of the Jamestown Foundation. Last week infox.ru announced a new Kremlin program that called for adopting “programs to give one-time bonuses as large as 150,000 rubles ($1,600) to underage girls who get pregnant and carry their babies to term.”

Boosting the birthrate is cast as supporting Russia’s national security. Putin’s war in Ukraine has increased the urgency and cost of changing the long-term demographic in population decline at its roots. The government is boosting incomes and attempting to improve economic prospects for these young teenage girls amid the prohibitively high cost of the war in Ukraine. Given that Russians typically begin families later than non-Russian ethnic groups in the country, it may exacerbate other issues for Putin.

Not everyone in Russia supports the policy change despite the acceleration in the decline. The country’s moral leadership, demographers, and some senior officials argue that the programs will fail to increase the birthrate while undermining traditional Russian values. Many regional leaders say they can’t afford the cost of the underage pregnancy program. Vechernyaya Moskva reported last month that “opposition to this policy has spread to Moscow. Leaders with moral authority in the Duma, the Russian Orthodox Church, and the media view state support for the births of children outside of marriage as undermining ‘traditional’ values,” says Goble.

 The declining population is likely to impact the Russian economy and Putin’s military plans, according to the Nezavisimaya Gazeta last week. As the Kremlin searches for ways to reverse the decline, it needs to take in consideration avoiding financial costs or making fundamental changes to society. The underage pregnancy programs, which now total 41 across the country, follow the Kremlin’s implicit and explicit promotion of the strategy and represent a reversal of earlier programs to discourage teenage girls from getting pregnant. Russian demographers see the move as one of desperation that will fail. 

At least two ministers, among other high-ranking Russian officials, oppose the program on moral financial grounds. They argue the birthrate will not increase as the money will go to young girls already pregnant out of wedlock rather than those interested in becoming underage mothers. On April 11, The Moscow Times reported that to avoid Putin’s wrath some officials are working behind closed doors to reverse the policy.

Russia faced an unprecedented low in recorded births in 2024 since 1999 of only 1.222 million births. That number will not sustain the country’s economy, military, and law enforcement. Given the demographic environment, analysts in Washington believe it is unlikely the Kremlin will close the program. Rising opposition to it also makes it unlikely that the program will spread nationwide. “The program is likely to continue, although in fewer places and with less money, as yet another example of how the continued existence of Russian federal structures matter despite Putin’s attempts to gut federalism of its more familiar meanings,” says Goble.   

Russia’s ethnic makeup may also impact the longevity of the teenage pregnancy program. Putin is concerned as the birthrates in the non-Russian republics of the North Caucasus, which were historically high, are also declining. Moscow can’t depend on the region to make up for declines in other areas of the country. Analysts in Washington point out that Moscow’s earlier maternal capital program had the unintended consequence of disproportionately boosting the birthrate of groups the Kremlin was less interested in growing. Paying teenagers may emerge quickly as yet another major political issue destabilizing Putin’s regime.

Daria Novak served in the U.S. State Dept.

Illustration: Pixabay

Senator Mike Lee (R-UT) has introduced to the Senate the Restraining Judicial Insurrectionists Act of 2025, which establishes a three-judge panel to swiftly review injunctions or declaratory relief against the President of the United States and the Executive Branch, with quick appeal to the Supreme Court. This legislation comes in the wake of several decisions by district court judges usurping the role of the Chief Executive from President Donald Trump and attempting to thwart the will of the American people who elected him. 

  According to a release from Senator Lee, The bill would stop blanket injunctions from sabotaging President Trump’s legitimate constitutional authority as Commander in Chief

 “America’s government cannot function if the legitimate orders of our Commander in Chief can be overridden at the whim of a single district court judge,” said Senator Lee. “They have presumed to run the military, the civil service, foreign aid, and HR departments across the Executive Branch—blatantly unconstitutional overreach. This legislation will create a judicial panel to expedite Supreme Court review of these blanket injunctions, preventing unelected radicals in robes from sabotaging the separation of powers.”

The bill amends 28 USC 2284 to state that any action commenced against the executive seeking injunctive or declaratory relief against the Executive will go to a three-judge district court.

Next, it requires that upon filing any covered action, the district judge who received the complaint and/or motion for preliminary injunction will refer the matter to the Chief Justice. The Chief Justice will then be required to select three judges in active service to preside over the case.

Additionally, the bill requires that a majority of the judges must agree to issue any form of relief, preliminary or permanent.

Finally, because this is a three-judge district court, all orders are directly appealable to the Supreme Court without discretion—so they must take up the case. 

A companion bill, The “H. Rept. 119-40 – NO ROGUE RULINGS ACT OF 2025.” Has been introduced in the House of Representatives. Similar to Senator Lee’s proposed legislation, The Rogue Rulings measure states that “no United States district court shall issue any order providing for injunctive relief, except in the case of such an order that is applicable only to limit the actions of a party to the case before such district court with respect to the party seeking injunctive relief from such district court and non-parties represented by such a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure.

It also states that “If a case is brought by two or more States located in different  circuits challenging an action by the executive branch, that case shall be referred to a three-judge panel selected pursuant to section 2284, except that the selection of judges shall be random, and not by the chief judge of the circuit. The three-judge panel may issue an injunction that would otherwise be prohibited … and shall consider the interest of justice, the risk of irreparable harm to non-parties, and the preservation of the constitutional separation of powers in determining whether to issue such an order…An appeal of an order granting or denying injunctive relief pursuant to subsection (b) may lie to the circuit embracing the district or to the Supreme Court, at the preference of the party.”

While Congress cannot regulate the activities of the United States Supreme Court, which is a co-equal branch, it does have the power to direct the jurisdiction of lower federal courts. As noted by Justia district courts “subject to “exceptions and regulations” prescribed by Congress, and the jurisdiction of the inferior federal courts is subject to congressional prescription. Additionally, Congress has power to regulate modes and practices of proceeding on the part of the inferior federal courts. Whether there are limitations to the exercise of these congressional powers, and what the limitations may be, are matters that have vexed scholarly and judicial interpretation over the years, inasmuch as congressional displeasure with judicial decisions has sometimes led to successful efforts to “curb” the courts and more frequently to proposed but unsuccessful curbs. Supreme Court holdings establish clearly the breadth of congressional power, and numerous dicta assert an even broader power, but that Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court.

Despite the President’s Proclamation describing the violent  and hostile actions of TdA, and the fact that this criminal gang is sponsored by the nation-state of Venezuela, and is conducting “a form of attack short of war,” Judge Henderson persists in describing Tren de Aragua as “undesired people” engaged in “migration.”

Strangely, though, in a section of her opinion entitled “Issues Not Decided,” Judge Henderson specifically states that “I do not pass on whether TdA has conducted an ‘invasion or predatory incursion’ ‘against the territory of the United States.’”  The Court also claims to “offer no view on whether TdA’s conduct is ‘perpetrated, attempted, or threatened . . . by a[] foreign nation or government.’ 50 U.S.C. § 21.”  While Judge Henderson notes that “[t]he Proclamation claims that TdA ‘is closely aligned with, and [] has infiltrated’ the Venezuelan state such that it is a ‘hybrid criminal state,'” the Court believes  “[t]his issue raises disputed questions of sovereignty, authority and control that turn as much on contested facts as they do legal conclusions.”

Read again the sections quoted above of the Court’s opinion discussing what constitutes an invasion and a predatory incursion.  How can Judge Henderson say she is not deciding these issues, when she clearly offers her opinion that TdA, who she describes as “undesired people” engaged in “migration,” is NOT engaged in either an invasion or predatory incursion?

The separate concurring opinion issued by Judge Patricia Millett is similar.  

You may recall that during oral arguments, Judge Millett was reported to have said “[t]here were plane loads of people. There were no procedures in place to notify people…Nazis got better treatment under the Alien Enemies Act.” Her written opinion continues in the same vein.

“In this appeal,” Judge Millett writes, “the government seeks exceptional emergency relief from temporary restraining orders that do just one thing – prevent the summary removal of Venezuelan immigrants to a notorious prison in El Salvador or other unknown locations without first affording them some semblance of due process to contest the legal and factual bases for removal. Plaintiffs are Venezuelan immigrants who the government claims are members of a violent criminal gang known as Tren de Aragua. In the government’s view, based on its allegation alone, Plaintiffs can be removed immediately with no notice, no hearing, no opportunity – zero process – to show that they are not members of the gang, to contest their eligibility for removal under the law, or to invoke legal protections against being sent to a place where it appears likely they will be tortured and their lives endangered.”

This, of course, ignores the torture and endangering of lives that got TdA members arrested in the first place.  However, to be fair, much of Judge Millett’s opinion is focuses on the lack of due process given to what their lawyers describe as “undocumented Venezuelans.” “To protect the Nation’s safety and security,” the Court states, “Congress enacted special expedited removal proceedings for noncitizens who have been convicted of committing aggravated felonies…or are deemed to be ‘alien terrorist[s,]’…Even those expedited proceedings allow for notice and an opportunity to be heard before a neutral decisionmaker.”

The Court also notes that  “[u]nder the AEA, when a ‘complaint against’ an ‘alien enemy resident’ is presented to a court of the United States, the court’s ‘duty’ is to provide ‘a full examination and hearing on such complaint’ and to decide whether there is ‘sufficient cause’ to have that person removed or otherwise detained. 50 U.S.C. § 23.”

According to Judge Millett, “[j]udicial review has always been available to noncitizens detained or removed under the AEA. During the War of 1812, Chief Justice John Marshall and federal District Judge St. George Tucker ordered a British subject released because the local marshal had acted beyond his delegated authority by detaining the plaintiff without proper notice. ”  Therefore, Judge Millett finds fault in the lack of any procedures for challenges to removal.   

“The Proclamation does not establish any process by which individuals are given notice of the government’s determination that they meet the Proclamation’s criteria and are therefore removable to a country of the government’s choosing,” Judge Millett states. “Nor does the Proclamation establish any process by which individuals may challenge the government’s determination that they meet the Proclamation’s criteria. Instead, upon the government’s determination that an individual meets the Proclamation’s criteria, that individual is subject to ‘immediate’ removal, without notice and without time or opportunity to challenge their removal.”

Judge Millett’s concerns should not be ignored.  Due Process is a hallmark of American justice, and is equally available to citizens and noncitizens alike.  It is easy to consider the trail of death and destruction wrought by Tren de Aragua, and believe that their immediate removal from our borders can only be beneficial to the United States.  But as Judge Millett so inartfully pointed out, even Nazis deserve notice, and the opportunity to be heard.

The dissenting Judge, Justin Walker, believes that the DC District Court does not have jurisdiction over the case. “[W]hat is at this point uncontested is that ‘individuals identified as alien enemies . . . may challenge that status in a habeas petition’…The problem for the Plaintiffs is that habeas claims must be brought in the district where the Plaintiffs are confined. For the named Plaintiffs at least, that is the Southern District of Texas. Because the Plaintiffs sued in the District of Columbia, the Government is likely to succeed in its challenge to the district court’s orders.”

In other words, the “undocumented Venezuelans” who brought their case in the DC District Court should have brought a habeas petition in the jurisdiction where they are being held. As Judge Walker notes, “’At its historical core, the writ of habeas corpus’ serves ‘as a means of reviewing the legality of Executive detention.’ Indeed, its most central ‘historic purpose’ was ‘to relieve detention by executive authorities without judicial trial.’ This ‘great and efficacious writ’ did so by requiring the custodian to ‘produce the body of the prisoner’ to the ‘judge or court’ and provide a ‘satisfactory excuse’ for the prisoner’s detention.”  And that application should have been made to the District Court in Texas; “habeas claims must be brought where the petitioner is confined, and the Plaintiffs are not confined in the District of Columbia,” Judge Walker states.

Judge Walker’s opinion is a tacit admission that the Plaintiffs knew they would stand a better chance of success in the DC District Court, than in the Court where the challenge belonged.  This is called “forum shopping.”

According to the Legal Information Institute at Cornell University, “[f]orum shopping refers to the practice of pursuing a claim…in the court that will treat the claim most favorably…[w]hile forum shopping is still permitted under limited circumstances, the practice is generally discouraged in the modern legal system.” 

Why would the practice of forum shopping be discouraged?  Clearly, so Judges like Henderson and Millett do not hear a case that has no business being heard in their court.

The case is now headed to the US Supreme Court.  

Stay tuned – this controversy is far from over.

Judge Wilson served on the bench in NYC

Illustration: Pixabay

Recently, we addressed the injunction issued by the Chief Judge of the District Court of the District of Columbia, James Boasberg, which halted the Trump Administration efforts to deport members of the violent Venezuelan gang, Tren de Aragua (TdA).  President  Trump had issued a Proclamation declaring members of TdA to be Alien Enemies, and agents of the Venezuelan government, who had encouraged members of the gang to infiltrate the United States in an effort to destabilize our country with their criminal activity. In doing so, the President invoked the Alien Enemies Act (AEA), which states that “[w]henever there Is a declared war between the United States and any foreign nation or government, or any invasion or predatory Incursion is perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.” 

Five “noncitizen Venezuelans” brought a case in the DC District Court and asked that their deportations be stopped.  In a series of rulings, Judge Boasberg ordered the Trump Administration to “not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court,” then expanded his order to prevent the removal of “All noncitizens in U.S. custody who are subject to the March 15, 2025 Presidential Proclamation.” 

The Attorney General’s Office appealed, claiming the Court did not have jurisdiction to determine whether or not the President could invoke the Alien Enemies Act, and to issue an injunction was an interference in President’s exercise of his Constitutional powers.  On March 26, 2025, in a 2-1 decision, a three judge panel of the DC Court of Appeals sided with Judge Boasberg and kept the injunction in place. 

What is of primary interest here, though, is the reasoning behind the appellate court’s decision.  Judge Boasberg did not give any explanation of his rulings – he merely submitted orders to the government without providing any basis for those decisions.  Thus, the opinions provided by each of the three judges at the appeals court is the first chance we have to understand why the lower court would block an action by the Trump Administration that is favored by a majority of the American public.

According to Circuit Judge Karen LeCraft Henderson, “[t]he government asserts that the ‘sole question’ amenable to judicial scrutiny is whether a detained individual is ‘an alien enemy’…whether the person is a fourteen year or older ‘native[], citizen[], denizen[], or subject[]’ of a presidentially declared hostile nation…Any other AEA prerequisites are purportedly ‘political question[s]’ ‘outside the competence of the courts.’”  However, “[q]uestions of interpretation and constitutionality – the heartland of the judicial ken – are subject to judicial review.”  Thus, “conditional questions – the legal meaning of war, invasion and predatory incursion – are well within [the] courts’ bailiwick.”

This preliminary analysis is true, so far as it goes.  But the Court then goes on to discuss the reasons why the President could not use the Alien Enemies Act to remove TdA members from our shores.  “[T]he AEA vests in the President near-blanket authority to detain and deport any noncitizen whose affiliation traces to [a] belligerent state,” the Court states.  “A central limit to this power is…that the United States be at war or under invasion or predatory incursion.” 

Judge Henderson then proceeds to take a very narrow view of what constitutes an invasion or predatory incursion (since there is no declared war between Venezuela and the United States, there is no need to examine the issue in this respect).

“[T]he invasion must be ‘against the territory of the United States by any foreign nation or government.’ 50 U.S.C. [Sec] 21 (emphasis added),” the Court writes. “The requirement that the ‘invasion’ be conducted by a nation-state and against the United States’ ‘territory’ supports that the Congress was using ‘invasion’ in a military sense of the term…Undesired people do not arrive against the territory. But foreign armies can…invade the territory of the United States.”

Further, in describing a “predatory incursion,” Judge Henderson believes  that while “[a]n incursion is a lesser form of invasion,” a predatory incursion is “a form of hostilities against the United States by another nation-state, a form of attack short of war. Migration alone did not suffice.”

Judge Wilson’s (ret.) article concludes tomorrow

Illustration: Pixabay

Batan, Corregidor, “I shall return”—places and phrases associated with iconic battles in the Philippines during the Second World War.

World War II may be history, but the danger has returned with China taking the place of Imperial Japan. Both Washington and Manila recognize the danger, and are taking steps to address it.

In meetings held in the Philippine capital in March, the long-standing post-war defense relationship between the two nations, expressed in the 1951 U.S.-Philippines Mutual Defense Treaty, was confirmed. Secretaries of Defense from both governments also reaffirmed that the MDT extends to armed attacks against either country’s armed forces, aircraft, and public vessels – including those of their coast guards – anywhere in the South China Sea. They also underscored that, in addition to the 1951 treaty, the 1998 Visiting Forces Agreement and the 2014 Enhanced Defense Cooperation Agreement are critical foundations for continued joint defense goals.

New steps were taken, geared towards deterring the intensely growing Chinese threat. Secretary Hegseth and Secretary Teodoro agreed to “reestablish deterrence in the Indo-Pacific region and achieve Peace through Strength,” according to the U.S. Defense Department.

The two nations established a four-piece plan that seeks to build upon the United States’ late July 2024 commitment of $500 billion to modernize the Philippine military. It includes an agreement that the United States will deploy additional advanced military capabilities to the Philippines, plans for bilateral training between both nations for high-end operations, an agreement to prioritize bilateral defense industrial cooperation, and an agreement to launch a bilateral cyber campaign.

The U.S. will also Deploy more advanced. capabilities, including the Navy-Marine Expeditionary Ship Interdiction System (NMESIS) and highly capable unmanned surface vessels. Exercising with the NMESIS – a mobile, ground-based anti-ship missile launcher – as part of key exercises could improve interoperability and strengthen deterrence by providing coverage of strategic sea lanes from coastal positions.

Going forward, the two nations will conduct advanced bilateral Special Operations Forces training in the Batanes Islands. U.S. Special Operations Forces and Philippine Marines will train together on complex landing scenarios to enhance interoperability between U.S. forces and the Armed Forces of the Philippines and improve combined capability to conduct high-end operations in the Indo-Pacific region.

China has pushed legally unsound and, frankly. Logically ridiculous claims of sovereignty in wide-ranging areas, both in the Indo-Pacific and elsewhere, including, absurdly, the Arctic. It does so for both military and economic regions. Beijing hopes to intimidate as many nations as possible in accepting its expansionist demands.

The U.S. Army War college had previously warned that “The Philippines’ weak defenses and Washington’s relatively low attention to the country—in contrast to Japan, South Korea, and Taiwan—make it an attractive target. Beijing would prefer for Washington to abandon Manila, undercutting its credibility with other regional partners. Defeating the US Armed Forces in the archipelago would also bolster China’s military reputation. Add the strategic position of Luzon, the Philippines’ northernmost island on the edge of the Bashi Channel and a major entry point into the South China Sea for external navies like the US Navy, and the Philippines becomes an even more appealing target.”

In January, an Australian news source noted that “A Philippine security official says that China is pushing the country ‘to the wall’ with growing aggression in the disputed South China Sea, warning that ‘all options are on the table’ for Manila’s response, including new international lawsuits…We do not and will not dignify these scare tactics by backing down. We do not waver or cower in the face of intimidation. On the contrary, it strengthens our resolve because we know we are in the right.”

Illustration: Pixabay

In an effort to elicit sympathy for these “noncitizen Venezuelans,” their lawyers, members of the ACLU and Democracy Forward, state that “[t]hey have compelling asylum claims – for instance, one fled Venezuela after he was beaten by police because his stepfather was a political dissident…All deeply fear removal to a country where they risk persecution.”

In its order granting the Temporary Restraining Order, the Court stated that “an immediate Order is warranted to maintain the status quo until a hearing can be set.”   The Court initially ordered that “Defendants shall not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court,” but then expanded its order to prevent the removal of “All noncitizens in U.S. custody who are subject to the March 15, 2025 Presidential Proclamation.” 

Seems not everyone got the message from Judge Boasberg.  A plane loaded with “noncitizen Venezuelans” landed in El Salvador after the judge’s order was issued. According to CBS News, “[s]ocial media posts from Salvadoran President Nayib Bukele indicated at least one flight carrying deported individuals had arrived in his country after the order. In one post, Bukele commented on a news story about the ruling by writing, ‘Oopsie… Too late.’ That post was shared by U.S. Secretary of State Marco Rubio and White House Communications Director Steven Cheung.” 

Judges, whether federal or state, don’t like it when they think their orders are being violated, so the Court ordered an immediate hearing, and further ordered the government to provide a “sworn declaration that no one on any flight departing the United States after 7:25 p.m. on March 15, 2025, was removed solely on the basis of the Proclamation at issue; 2) A sworn declaration setting forth when the Proclamation at issue was signed, when it was made public, and when it went into effect; 3) The Government’s best estimate of the number of individuals subject to the Proclamation currently remaining in the United States and how many are currently in U.S. custody.”

In their response, the government asserted that it did not violate the Court’s order.  “As to any flights that were already outside U.S. territory and airspace, anyone aboard had already been ‘removed’ within the meaning of the Alien Enemies Act and the Court’s order, and therefore were not covered by the order,” the Attorney General’s Office states. But more importantly, the Trump Administration challenges the Court’s Authority to issue an injunction in the first place. “Plaintiffs cannot use these proceedings to interfere with the President’s national-security and foreign-affairs authority, and the Court lacks jurisdiction to do so,” the Attorney General states.

“[E]ven if the Court’s order had purported to enjoin the government from taking steps overseas pursuant to the Proclamation,” the Attorney General states, “that still would not restrict the President from exercising his other authorities under the Constitution to engage in diplomatic negotiations and to protect the United States from dangerous terrorists and criminals already outside the country… just as a court assuredly could not enjoin the President from carrying out a foreign drone strike or an overseas military operation, or from negotiating with a foreign power to coordinate on such an operation, a court [cannot] lawfully restrict the President’s inherent…authority to work with a foreign nation to transfer terrorists and criminals who are already outside the United States.”

None of this makes any sense to the majority of Americans.  Tren de Aragua is a demonstrably dangerous group of criminals, who came to national attention when they violently took over an apartment complex in Colorado. How can a federal judge order their removal halted?

As we discussed as far back as 2019, “for many years, it has been held repeatedly by the US Supreme Court that the power to issue injunctive relief extends to whoever is affected by the injunction, whereever they may be.  For instance, in Steele v. Bulova Watch Co., a 1952 decision, the Supreme Court held that  “the District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction” (emphasis added)…Thus, there is no geographical limit to a Court’s exercise of its power to issue an injunction.” 

Therefore, Judge Boasberg, who sits in District Court in Washington, DC, can issue an injunction that affects “noncitizen Venezuelans” who are being held in Texas.  However, Judge Boasberg fails to acknowledge that his court cannot assert jurisdiction over a Presidential Proclamation which invokes the Alien Enemies Act.

There is specific case law on this issue.  In Ludecke v. Watkins, a US Supreme Court decision from 1948, Justice Felix Frankfurter wrote that “some statutes ‘preclude judicial review’…Barring questions of interpretation and constitutionality…the Alien Enemy Act of 1798 is such a statute. Its terms, purpose, and construction leave no doubt… The very nature of the President’s power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion.” (Citations omitted.) 

In an effort to sidestep this clear interpretation of the law, the lawyers for Tren de Aragua argue that, “[t]he President has invoked…a war power, the Alien Enemies Act of 1798 (“AEA”), in an attempt to summarily remove noncitizens from the United States and bypass the immigration laws Congress has enacted…[b]ut the United States is not at war, and the prerequisites for invocation of the AEA have not been met…[t]he President can invoke the AEA only in a state of ‘declared war,’ or when an ‘invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government’…[n]ot surprisingly, therefore, the Act has been invoked only three times in our country’s history, all in declared wars: The War of 1812, World War I, and World War II.” 

“The President’s imminent Proclamation targets Venezuelan noncitizens whom the government accuses of being part of Tren de Aragua, a criminal gang,” the lawyers continue. “But the President’s Proclamation is invalid under the AEA for two plain reasons. First, Tren de Aragua is not a ‘foreign nation or government.’ Second, Tren de Aragua is not engaged in an ‘invasion’ or ‘predatory incursions’ within the meaning of the AEA, because criminal activity does not meet the longstanding definitions of those statutory requirements.”

These arguments take an extremely narrow view of the powers invoked by President Trump in his Proclamation.

Turning once more to the case of Ludecke v. Watkins, a German National had objected to his removal from the United States and argued that World War II had ended, so the Alien Enemies Act no longer applied.  However, the Court stated that “[w]ar does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops… It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come…[t]hese are matters of political judgment for which judges have neither technical competence nor official responsibility.” (Emphasis added, Citations omitted.)

Further, as noted in the Proclamation itself, Tren de Aragua is not just a “criminal organization.”  “TdA is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus,” the Proclamation states. “TdA grew significantly while Tareck El Aissami served as governor of Aragua between 2012 and 2017. In 2017, El Aissami was appointed as Vice President of Venezuela. Soon thereafter, the United States Department of the Treasury designated El Aissami as a Specially Designated Narcotics Trafficker…Like El Aissami, Nicolas Maduro, who claims to act as Venezuela’s President and asserts control over the security forces and other authorities in Venezuela, also maintains close ties to regime-sponsored narco-terrorists. Maduro leads the regime-sponsored enterprise Cártel de los Soles, which coordinates with and relies on TdA and other organizations to carry out its objective of using illegal narcotics as a weapon to “flood” the United States. In 2020, Maduro and other regime members were charged with narcoterrorism and other crimes in connection with this plot against America.”

The Proclamation also asserts that “[o]ver the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. The result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.”

Based upon this relationship between Tren de Aragua and the Venezuelan government, President Trump finds that “TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”

This language would satisfy the requirements for invocation of the Alien Enemies Act, which does not require a declaration of war, but “any invasion or predatory Incursion,” which is “perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government.”

In other words, President Trump has proclaimed that Tren de Aragua is acting at the behest of the Venezuelan government to perpetrate an invasion of the United States, in an effort to destabilize our country.  Using this specific language, and relying upon the precedent of Ludecke v. Watkins, it should be crystal clear that the Courts have no jurisdiction in this matter.

How then can a federal judge interfere in this exercise of Presidential power?  The short answer is; He can’t.  As the Attorney General states, “[t]he Executive Branch has designated TdA a foreign terrorist organization, a designation that Plaintiffs do not challenge. The course of these proceedings – in which the Court has enjoined removal of aliens whom the Executive Branch has determined are part of a foreign terrorist organization – raises extraordinary concerns about the rule of law and the Executive Branch’s ability to take swift actions to keep the Nation safe.”

Let us hope the Appellate Courts step in swiftly to reverse Judge Boasberg’s blatant and illegal judicial activism.

Judge Wilson served on the bench in NYC

Illustration: Pixabay