When almost every action taken by a new president is blocked by federal judges, it’s clear that this is about more than the rule of law. No other president in living memory has been hit with so many injunctions – more than a dozen – just two months into his presidency, spanning almost every policy directive. The most high-profile fight has now landed in an appeals court. US District Court Judge James Boasberg on March 15 issued a temporary restraining order (TRO), halting deportation flights and even demanding that planes already in the air turn around and return to American soil – which did not happen. On March 24, the DC Circuit Court of Appeals heard legal arguments pertaining to President Donald Trump’s invocation of the Alien Enemies Act of 1798 to deport Venezuelan gang members.
A three-judge panel of the DC Circuit Court of Appeals hearing oral arguments in the deportation case was reportedly split on the issue before it. The primary concern seems to be due process. Obama-appointed Judge Patricia Millett - the other two judges on the panel are Republican appointees - posited that the Trump administration was "not making sure these folks are members of the [Tren de Aragua] gang before they remove them."
A lot of Republicans want to know how a federal judge at the district court level can assume the authority to, essentially, tell the executive branch of the US government what it can and cannot do.
Several of the current injunctions do not simply prevent the executive branch from overstepping but have the effect of literally dictating policy. Assuming, for a moment, that every one of the judges blocking Trump’s agenda is acting entirely within his or her authority, then America’s legal system has, in effect, created something akin to judicial tyranny. If a duly elected president must bow to the will of judges on every issue, then perhaps the threat to democracy about which Democrats constantly complain is indeed upon us.
Judge Boasberg’s reservations about the recent deportation flights are based on what he claims is the lack of due process afforded Venezuelans being flown back to their native land. The judge contends that the Alien Enemies Act “may be brought to bear only on those who are, in fact, ‘alien enemies.’” The White House argues that this is indeed an accurate description of illegal alien members of a violent criminal organization operating within the borders of the United States. For the sake of accuracy, it should be noted that Boasberg's TRO was not a blanket injunction against all repatriations of illegal aliens, but specific to those deported under the Alien Enemies Act.
Particularly irksome to Trump’s allies on Capitol Hill is the issuing of nationwide injunctions by district judges. The House Judiciary Committee will reportedly hold a hearing in the coming week to hash out what can be done to rein in so-called activist judges.
Deportation of Illegals Is Now Illegal?
The fight over deportation is especially baffling. Every individual who has entered the United States without authorization is subject to deportation, according to established laws. The idea that a judge can prevent the executive branch from enforcing immigration law might seem, to any rational person, quite insane.
According to Judiciary Committee Chairman Jim Jordan (R-OH), the House may vote within the next week or two on a bill introduced by Rep. Darrell Issa (R-CA) that would block district judges from issuing nationwide rulings.
In the upper chamber of Congress, Sen. Mike Lee (R-UT) is touting his Restraining Judicial Activists Act of 2025, which, if it became law, would establish three-judge panels – consisting of one circuit and two district judges – that would handle rulings against the executive branch.
The talk of impeaching judges has subsided a little, perhaps because Republicans began to realize it was a knee-jerk reaction and probably not the appropriate way to deal with the problem. Not only that, but Senate Republicans don’t have the votes to convict and remove any of these judges.
About Those Coequal Branches of Government
For the Trump administration to succeed, the cadre of judges that Trump and his allies believe have chosen politics over what is best for the country will need to be disabused of their notions of unchecked authority over the executive branch. And yet, the sacred system of three coequal branches must survive. Trump and his supporters may want these obstructionist judges to pay a steep price – and perhaps in some instances, they should indeed be held to account. But these judges, partisan activists or not, know how to use statutes to legally insulate even decisions that may not be in the best interests of the American people. Besting them is a task for which one needs a scalpel rather than a sledgehammer.
Trump may lose one or two of these legal tussles, but, Alien Enemies Act or not, he’s almost certainly going to win the deportation fight – even if he must take it to the Supreme Court and accept a slower removal rate so as not to deny due process. Ultimately, the deportation of illegal aliens is not open to much dispute. Deportation of violent criminals, particularly those associated with terrorist organizations, a designation now enjoyed by several criminal Central American gangs and at least one Mexican cartel, is even less objectionable.
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