“Nazis got better treatment under the Alien Enemy Act than has happened here.”
Those somewhat snarky words were spoken Judge Patricia Millett of the D.C. Circuit Court of Appeals during a contentious hearing on Monday involving the deportation of Tren de Aragua (TdA) gang members from the United States.
Millett, an Obama-appointed judge, appears to have fully embraced a tired tactic of the Left —never miss an opportunity to use the word “Nazi” when discussing Donald Trump. Granted, that may be a cynical interpretation.
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Yet, her incendiary rhetoric was not accidental. One wonders whether it was meant to disguise a potential weakness in her reasoning that members of the violent Venezuelan TdA terror group have an absolute right to due process and a hearing in court before being removed.
I’ll give her the benefit of the doubt. Sometimes hyperbole drives home a valid point.
Generally speaking, due process of law entitles people to some kind of hearing before being deprived of “life, liberty, or property.” It is enshrined in the Fifth Amendment to the Constitution. Typically, it affixes when individuals are accused of crimes. But it does not imply conventional court proceedings in all cases.
Importantly, deportation is not a criminal prosecution within the meaning of the Bill of Rights. Instead, the authority to deport is drawn from the power of Congress. This is a salient distinction in the case of the TdA terror gangs.
Let’s step back.
In 1798, the Fifth Congress passed a law known as the Alien Enemies Act. It granted to the President sole authority to expedite the removal of enemy aliens from American soil during a declared war or (emphasis added) a “predatory incursion.”
President Trump invoked the Act under the latter provision. Based on compelling evidence gathered by the Departments of Justice and Homeland Security, violent gang members of a designated terror organization were arrested, detained, and deported.
Even if one were to accept Millett’s argument, the decision of an executive or administrative officer acting at the behest of the president and within the powers expressly conferred by Congress, constitutes an alternative and accepted form of due process. (United States v. Ju Toy, 198 U.S. 253) Hence, a standard judicial hearing is not necessarily required.
Presidential use of the Enemy Aliens Act is not novel. As I explained in an earlier column, it is well-established, has never been repealed, and has been reviewed by courts numerous times. Four different presidents have invoked it, three of them Democrats in the 20th century.
The U.S. Supreme Court upheld President Harry Truman’s use of the Act in the case of Ludecke v. Watkins (33 U.S. 160) in 1948. The high court declared that the deportation of enemy aliens may be ordered summarily by executive action. “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,” said the court.
In other words, Congress deliberately granted the president extraordinary powers that cannot be challenged or nullified by any judge or court. The Supreme Court recognized there was a risk of abuse or error, but Congress knowingly accepted the risk: “Such great powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise…”
I do not question Judge Millett’s sincerity. She raises a perfectly legitimate point about due process, albeit with provocative language. Given the discourse in court on Monday, I would expect the appellate panel to rule that the right to a court hearing in no way infringes on the president’s unfettered right to invoke the Alien Enemies Act. Both can be true.
The Supreme Court may be obliged to sort it all out.
What is most troubling about this case are the actions of District Court Judge James Boasberg who initiated the imbroglio when he issued a temporary restraining order (TRO) and demanded that planes carrying TdA terrorists be halted mid-air and returned to the U.S.
The absurdity of that directive is self-evident. No judge has the authority to dictate the direction of travel beyond American airspace. Yet, it has become his irrational obsession as he continues to fixate on departure times and other detailed flight information. He embodies the quintessential qualities of an “activist judge” —bereft of objectivity while enamored of his own imagined power.
Regrettably, the federal bench is over-populated with them.
Many have become witting accessories in the shameful practice of “judge shopping.” Democrats and liberal groups have elevated it into an art form. Whenever Trump does something —anything— they race like a bat out of hell to a favorable venue and preferable judge where the result is preordained against Trump. It’s like rigging the roulette table.
The Trump deportation case is a prime example. The original five plaintiffs were being held in Texas at the very moment their petition for a TRO was filed. Under law, only a federal court in Texas had jurisdiction, not Boasberg in Washington, D.C. The appellate court should toss out the entire case on that basis alone, but I doubt it will.
There is another, equally significant, reason why Boasberg’s TRO is a lawless abuse of power. His directive halting deportations is a “universal injunction.” That is, a nationwide order which extends way beyond his very limited district authority.
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The scourge of universal injunctions has reached epidemic levels. It is the latest cudgel by which Trump’s opponents are attempting to bludgeon his agenda. It is another insidious form of “lawfare.” Having failed in their criminal cases to stop him from ascending to the presidency, they now scheme to dragoon his policy initiatives.
It is no coincidence that Trump’s adversaries have obtained more injunctions against him during the first two months of his presidency than his predecessor’s entire four-year term. These unelected activist judges have appointed themselves “super presidents” with the power to countermand the elected president.
Their judicial decisions are not constitutional checks and balances. They are a brazen usurpation of executive authority under the cloak of a black robe. It is a demolition of our cherished separation of powers, and it is spiraling dangerously out of control.
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It is high time that Congress, which created our federal courts, intervene to rein in the abuse. It must limit or circumscribe district court jurisdiction and bulldoze the dishonest and unethical practice of “judge shopping.”
Both the House and Senate have separate, but similar, bills designed to do just that. Soon, the lower chamber will hold hearings intended to advance their measure aptly named, “The No Rogue Rulings Act.”
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At the same time, it is incumbent on the Supreme Court to move with alacrity to reassert itself. The justices should seize control of the cases where lower court judges have commandeered authority and issued decisions that mangle the law. Those rulings must be repudiated.
A great many Americans support President Trump’s determination to rapidly evict enemy aliens who murder, rape, extort, and commit an endless array of despicable crimes. TdA is the personification of a “predatory incursion.” Citizens are understandably furious that judges like Boasberg care more about the welfare of terrorist criminals than their innocent victims.
The federal judiciary is broken. Doing nothing is not an option, and cosmetic changes will accomplish little. New and muscular rules must be imposed to rectify the chronic abuse by activist judges.
The question is…who will have the fortitude to do it?
