Dakota Beacon

A direct answer to a simple question – one of President Trump’s lawfare nemesis, of course.

Another question. Has the federal judiciary degenerated into an insolent “every judge for himself” scene? Absorbing the daily news, one would think so. From all appearances it’s every judge for himself as district courts and appeals courts serve up radically different verdicts. Decisions, reversals, stays, restraining orders, injunctions, freezes, thaws -- federal courts are in uproar as case after case fighting the Trump administration comes before them. Courts may be in turmoil, but for the most part, Trump continues to win the legal battles. A little research pays big dividends.

February 20 -- the State Department named eight transnational gangs and cartels as Foreign Terrorist Organizations (FTO), including Tren de Aragua (TdA), a criminal organization that began as a prison gang in Venezuela in 2010.

March 14 – Under the Alien Enemies Act, Trump proclaimed TdA’s connection with Venezuelan leader Nicolas Maduro and his regime a narco-terrorism enterprise. Trump acted quickly on his proclamation by apprehending dozens of TdA members. He planned to deport them and transfer physical custody to El Salvador who had agreed to house them.

March 15, 1:12 am – Lawyers representing five of the TdA members filed a lawsuit to block their removal. Furthermore, they asked for two things from (drumroll) Chief Judge James Boasberg of the U.S. District Court for the District of Columbia. They wanted a writ of habeas corpus releasing the five detained plaintiffs. Second, they sought certification of a class (creating a class action suit) consisting of all individuals in the US covered by Trump’s action protecting them from removal.

March 15, 9:40 am -- Boasberg issued a temporary restraining order barring removal of FIVE named plaintiffs. At 5:45 pm 137 suspected TdA members were in flight from Texas to El Salvador. At 7:25 pm Boasberg certified a class of ALL individuals covered by Trump’s proclamation and issued a second temporary restraining order prohibiting the government from removing them for 14 days.

March 28 -- Boasberg extended that order for another 14 days.

April 7 -- The Supreme Court stepped in vacating both of Boasberg’s March 15 temporary restraining orders. They said a writ of habeas corpus must be sought in the jurisdiction where plaintiffs were being held. That would be Texas.

Boasberg’s actions (read that as “activism”) did not stop here. He disputed the meaning of just one word in his second temporary restraining order: “removing.” The government said that “removing” meant expelling the detainees from US territory, which occurred before Boasberg issued his second temporary restraining order. Boasberg, however, claimed that “removing” meant relinquishing custody to a foreign sovereign. But at the time of the second restraining order the TdAs were already in flight. Under Boasberg’s reading, the government violated his temporary restraining order.

April 16 -- Boasberg issued a criminal contempt order citing the government’s “willful disobedience” of his second temporary restraining order. His demand was to return the deportees or name the officials involved so they could be prosecuted.

Hold on! Didn’t the Supreme Court vacate Boasberg’s temporary restraining orders? How could anyone disobey an order that Boasberg had no authority to issue?

Directly, the administration went to the US Court of Appeals for the DC Circuit. Two members of the three-judge panel sided with the government and vacated Boasberg’s contempt order.

In an articulate opinion, Appeals Court Judge Neomi Rao explained how far out of bounds Boasberg had strayed. Rao spelled out how Boasberg, not Trump, had exceeded his authority. Quoting Rao, “[t]he district court’s order intrudes upon the powers committed to the Executive Branch…This case is highly unusual, and I have found no other like it, perhaps because no district court has threatened criminal contempt against executive branch officials as a backdoor to coercing compliance with an order that has been vacated by the Supreme Court.” She called Boasberg’s demand of returning migrants or naming officials as “untenable” and described the order as “coercive.”

But this saga may not be over. The ball is in Boasberg’s court to play (no pun intended). He may appeal to the Supreme Court, but on what grounds? Will the Supreme Court even take his case the second time around? Time will tell if Boasberg stays in his judicial lane where he belongs.

Dennis M. Patrick can be contacted at (JavaScript must be enabled to view this email address).