Trump vs. the World: Still Undefeated?

Another two weeks, another column about Donald Trump.

President Trump keeps on winning

I would feel guilty for being repetitive, but really what else is there to write about these days? President Trump has not just set the agenda, he has turned the entire world into his oyster.

The only question to be answered is, who is Trump beating this week? Ukraine’s President Zelensky? Senate Minority Leader Chuck Schumer? The Houthis? The Iranian Supreme Leader? Or some random district court judge who decides he should be running America’s foreign policy?

Technically, you could select from among dozens of district court judges who are using nationwide injunctions to stall and stymie Trump’s exercise of his Article II powers as president. Whether it is judges rejecting his ability to fire executive branch employees or his ability to determine how U.S. dollars should be spent overseas as part of his foreign policy, the overreach is astounding.

You hear about the threat of creeping authoritarianism from the mainstream media whenever they talk about Trump, but when some district judge decides to put on the commander-in-chief hat, no one blinks an eye.

The judge who ordered the planes turned around

Which brings us to U.S. District Judge James Boasberg in Washington, D.C., who recently ordered President Trump to turn around jets loaded with Venezuelan gang members and return them to the United States.

Under provisions of the Alien Enemies Act of 1798, Trump had deported more than 250 members of Tren de Aragua and MS-13 to El Salvador, which had agreed to hold the men in a “terrorism confinement center.”

This seems to be a legitimate use of the president’s constitutional war powers, and moreover is consistent with Article IV’s guarantee to protect states against invasion.

Apparently, Boasberg doesn’t think the Venezuelan and Salvadoran gangs represent an invasion. He should tell that to the parents of Jocelyn Nungaray, the 12-year-old girl who was murdered by two Venezuelan thugs in Houston, Texas. Or tell it to the family of Laken Riley, the 22-year-old nursing student murdered by an illegal Venezuelan immigrant in Athens, Georgia. It’s an invasion all right, sanctioned by Joe Biden and his henchman Alejandro Mayorkas. And only President Trump is doing anything to stop it.

In fact, President Trump’s March 15 proclamation declaring Tren de Aragua “a significant threat to the United States” should be read by all Americans who care about the safety of our citizens. The logic of the necessity to take action is spelled out in magnificent detail, and when read in conjunction with the text of the Alien Enemies Act, there is no wiggle room for district judges to countermand the president’s clear authority.

A gang isn’t a government agent?

Judge Boasberg acknowledges that, on the face of it, President Trump has considerable power to make decisions about how enemy aliens are handled in wartime, but he gets stuck on the idea that Tren de Aragua is an agent of the Venezuelan government. Trump explained all that in his proclamation, noting that the Central American country has become “a hybrid criminal state” which “used drug trafficking as a weapon against our citizens.”

Apparently Boasberg thinks he is in a better position to make decisions about national security than the president, and so he ordered the jets to turn around and return the drug gang members to America. Fortunately, the administration did not comply, thus maintaining the president’s legitimate role under the Constitution.

The judge is not alone in substituting wishes for facts. NPR reporter Rachel Treisman, in an article intended to provide cover for Boasberg, writes that “the act’s fine print states that the president can only assume this authority [to deport] once Congress has declared war.” If that were so, then obviously Trump could not use the Alien Enemies Act to deport terrorists since there has been no declaration of war since 1942.

But here is the actual “fine print,” which turns out to be writ large, and in complete opposition to what Treisman wrote and what Judge Boasberg has ruled so far:

[W]henever there shall be a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion shall be perpetrated, attempted, or threatened against the territory of the United States, by any foreign nation or government, and the President of the United States shall make public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall be liable to be apprehended, restrained, secured and removed, as alien enemies.

The argument against Trump falls to the ground

In the mind of reporter Treisman, this is somehow complicated, apparently because she does not understand the use of the conjunction “or.” The act is in effect during a declared war, but also during an invasion or “predatory incursion” (no better two-word description exists for the movement of Tren de Aragua into the United States).

Judge Boasberg does go so far as to acknowledge that the president has considerable leeway to name foreign nationals as enemy aliens, but he finds that the plaintiffs might prevail in their argument that the Alien Enemies Act “does not provide a basis for the president’s proclamation given that the terms invasion, predatory incursion really relate to hostile acts perpetrated by enemy nations and commensurate to war.”

But that returns us to our original concern – that a federal district court judge can unilaterally stop the duly elected president from exercising his constitutional authority to make foreign policy. Surely this cannot stand.

Alien Enemies related actions are not subject to judicial review

Despite the overreaching of district court judges in their rejection of multiple executive orders by this president, no such action can be expected to be upheld in the matter of the Alien Enemies Act. That’s because the Supreme Court in 1948 ruled categorically that the president’s actions under the Alien Enemies Act are not subject to judicial review.

Justice Felix Frankfurter wrote the majority opinion in Ludecke v. Watkins, a case concerning the deportation of a German national more than two years after the conclusion of World War II. And the language used is ironclad:

[The act’s] terms, purpose and construction leave no doubt. The language employed by the Fifth Congress could hardly be made clearer, or be rendered doubtful, by the incomplete and not always dependable accounts we have of debates in the early years of Congress. … 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.

Too bad district court judges don’t pay as much attention to federal judicial precedent as they do to liberal talking points. Let’s hope the Supreme Court returns to the president his authority to conduct foreign policy.

This article was originally published by RealClearPolitics and made available via RealClearWire.