Posted on Wednesday, March 19, 2025
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by BC Brutus
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20 Comments
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Supreme Court Justices are supposed to be the nation’s foremost experts on the Constitution and the rule of law. But Chief Justice John Roberts – nominally a “conservative” jurist – displayed an apparent misunderstanding of both by rebuking President Donald Trump’s call for the impeachment of a federal judge.
The controversy began over the weekend when U.S. District Court Judge James Boasberg, an Obama appointee, attempted to block the Trump administration from deporting illegal aliens who are suspected members of Tren de Aragua, a violent transnational gang that is reportedly now active in 16 states. Boasberg went so far as to order the administration to turn around deportation flights that were already in the air.
President Trump responded by calling for the impeachment of Boasberg. “This judge, like many of the crooked judges I am forced to appear before, should be impeached,” Trump wrote on his Truth Social account. “We don’t want vicious, violent, and demented criminals, many of them deranged murderers, in our country. Make America Great Again!”
Those comments prompted Roberts to issue a rare statement rebuking the call for impeachment without naming Trump. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose,” the chief justice wrote.
But to reduce this situation to a matter of mere “disagreement concerning a judicial decision” does a grave injustice to the threat Boasberg’s order poses to the American constitutional system. In effect, one unelected district judge is asserting that he has the power to unilaterally overrule a duly elected president who is clearly acting within his Article II authority. It doesn’t take a legal scholar to see how dangerous that is.
As White House Deputy Chief of Staff Stephen Miller pointed out during a CNN interview this week, the action that Boasberg is attempting to block is itself not “justiciable,” or subject to judicial review: “When the President is exercising his Article II powers to defend the country against an invasion or to repel a foreign terrorist that is unlawfully in the country, he’s exercising his core Article II powers as Commander in Chief. This is a Title 50 authority, it’s a Commander in Chief authority.”
The president’s authority to deport foreign terror threats specifically comes from the Alien Enemies Act, a 1798 law which the founding generation passed to grant the president exactly the sort of powers Trump is now exercising. That law states that whenever the president “makes public proclamation” of “any invasion or predatory incursion of the United States… all natives, citizens, denizens, or subjects of the hostile nation or government… shall be liable to be apprehended, restrained, secured, and removed, as alien enemies.”
President Trump issued just such a proclamation on his very first day in office, declaring a national emergency at the southern border. Along with members of Tren de Aragua and other foreign gangs, the Biden administration released more than 435,000 noncitizens with criminal convictions into the United States. Evidence has also emerged that Venezuela – where most of the migrants the administration was deporting over the weekend were from – emptied its prisons into migrant caravans on their way to the U.S.-Mexico border.
It is difficult to describe this urgent national security threat as anything other than an “invasion or predatory incursion.”
In Federalist No. 65, Alexander Hamilton wrote that impeachable offenses are those that “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” He further explained that these offenses are “of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
In other words, impeachment is a tool for addressing political misconduct rather than strictly legal or criminal wrongdoing. This highlights why impeachment is handled by Congress, not the courts – it’s about public trust and governance, not just breaking laws.
Trump is making essentially the same argument. He is not calling for Boasberg’s impeachment because he simply “disagrees” with the ruling. The president is asserting that Boasberg abused his power to further a partisan agenda, and in doing so “injured the society,” as Hamilton put it.
One can reasonably disagree with Trump’s assessment of Boasberg’s motives. But to suggest that it is somehow out of bounds for the president to call for the impeachment of a federal judge he believes has violated his oath of office would be to remove an important check on judicial power. The Founders wisely installed an unelected federal judiciary to insulate judges from political pressure, but the impeachment process was designed to ensure they were not shielded from all accountability.
Roberts’ critics have long accused him of being motivated more by a desire to maintain the Court’s image as an apolitical institution than by a desire to defend the Constitution and its separation of powers. This spat will do little to alter that reputation.
B.C. Brutus is the pen name of a writer with experience in the legislative and executive branches.
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