Inside the mind of a radical activist judge.

Judge James Boasberg's recent opinion on the deportations of alleged Venezuelan gang members is actually a study in judicial conservatism.

U.S. District Judge James E. Boasberg/ Wikimedia Commons

President Donald Trump and his minions have called for U.S. District Judge James E. Boasberg to be impeached, leading to a rare rebuke from U.S. Supreme Court Chief Justice John Roberts.

Why? Because he ruled in favor of due process for five Venezuelan non-citizens who were sent on flights to a notorious prison (concentration camp, actually) in El Salvador. The five deny that they are members of the notorious Tren de Aragua gang, as the Trump administration maintains.

Note that Boasberg has not yet ruled that the five should not be deported. He simply ruled that they had a right to challenge their deportation under the rarely invoked Alien Enemies Act of 1798. That Memorandum Opinion was issued on March 24. It is 37 pages long and anyone can read it; here it is at this link.

The Trump administration may have violated Boasberg’s earlier order that the plaintiffs were not to be sent out of the United States, and that any planes in the air were to be turned around. Judge Boasberg is still trying to figure that out.

I don’t know how many people have read Boasberg’s March 24 opinion. The lawyers in the case presumably have, and I assume at least some journalists who have covered the issues in spot reporting or in continuing coverage (we have some very talented legal reporters in the U.S.)

Personally, I really like reading legal opinions, even when they are very long. Doing so not only gives insight into how judges think and apply the law and judicial precedents, but it is also a real learning experience.

I find that the law makes a lot of sense in many cases, even if it is open to interpretation. Of course, interpreting the law is what judges are for; neither of the two other branches of government, the executive and the legislative, are tasked with doing that. (See Marbury v. Madison, 1803.) And I occasionally do legal reporting myself, having learned a lot about the law during my time at the ACLU of Southern California in the mid 1980s, and being a defendant in an $18 million federal defamation lawsuit a few years ago for my reporting work (no worries, we prevailed.)

So reading Judge Boasberg’s opinion was very interesting, especially given all the nasty things Trump and right-wing commenters have said about it and him. It’s not easy going, because the legal issues are multiple and complicated. But on page 19, Boasberg clearly lays out the three basic legal challenges that the Venezuelans, through their attorneys, are raising.

(The Proclamation he refers to here is a proclamation by President Trump that he is invoking the Alien Enemies Act of 1798 in the cases of the Venezuelans, an Act which—as many commenters have noted—has a terrible history and has led to some of the worst constitutional excesses in our nation’s relatively short life.)

Plaintiffs raise three principal legal challenges. First, they argue that any action taken pursuant to the Proclamation is unlawful because the Proclamation itself lacks a legal basis. That is so, they contend, because the actions of Tren de Aragua constitute neither an “invasion” nor a “predatory incursion,” and the group, moreover, is not a “foreign nation or government.” Second, Plaintiffs protest that even if the Act has been lawfully invoked here, they fall outside the scope of the Proclamation because they are not members of Tren de Aragua, and they must be given an opportunity to contest the Government’s assertion that they are. Third, Plaintiffs assertthat even if they are removable under the Act, they cannot be deported to a place like El Salvador where torture likely awaits. While the Court takes up these questions in order, at this stage, the second position is Plaintiffs’ strongest.

To put all this into slightly plainer English—although I think Judge Boasberg’s summary is pretty clear—I will just do a short commentary on these points.

1. Note that the Venezuelans are not challenging the validity of the Alien Enemies Act of 1798, even though its constitutionality is dubious and a number of courts have questioned it over many years. They are simply saying that it does not apply to them, despite arguments by the Trump administration that the gang is somehow an agent of Venezuelan president Nicolás Maduro.

2. The Venezuelan plaintiffs maintain not only that they are not members of the Tren de Aragua gang, but that they have been denied due process and the opportunity to demonstrate that to the government and the courts. Judge Boasberg goes on in his opinion to give the greatest weight to this argument, because it is very hard for the government to argue that due process was not denied. The deportees were simply put on planes and whisked out of the country.

3. The plaintiffs argue that no matter how the courts rule about the legality of their deportation, they cannot be deported to a prison (notorious concentration camp) that is not in their home country, and arbitrarily chosen—apparently for the purpose of harming the plaintiffs to the maximum degree possible without actually killing them (and of course, they may end up dying there.) In my view, this action by the Trump administration should shock the conscience even of those who are fully on board with the deportations.

So what is the bottom line here? Rather than being a radical activist judge, Boasberg has followed the most conservative imaginable interpretation of the law. His opinion is chocked full of judicial precedents, he has not made up any new law, and he certainly has not made any precipitous rulings in favor of the five Venezuelans. He has only ruled that they deserve their day in court, something the Trump administration is doing its best to deny them.

I will not go further into the detailed legal arguments in the opinion, in hopes that at least some of my readers will take a half hour or so out of their lives to peruse it themselves. It may seem a bit daunting at first, but give it some time and things should be pretty clear for most readers.

Followers of “Words for the Wise” know that I am a fierce critic of a lot of what the U.S. government has done in recent years as well as during our country’s history. But with this opinion, we are at our finest; I just wish I could say the same about the current presidency.

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