John Roberts, the chief justice of the US supreme court, delivered a rare rebuke on Tuesday of Donald Trump after the US president demanded the impeachment of a federal judge who had issued an adverse ruling against the administration blocking the deportation of hundreds of alleged Venezuelan gang members.
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in a statement. “The normal appellate process exists for that purpose.”
The statement came hours after Trump assailed the chief US district judge in Washington DC, James Boasberg, for issuing a temporary restraining order halting deportations under the Alien Enemies Act of 1798 that gives the president the power to conduct removals without due process.
“This judge, like many of the Crooked Judges I am forced to appear before, should be IMPEACHED!!!” Trump wrote about Boasberg, labelling him a “Radical Left Lunatic of a Judge” and a “troublemaker”.
Trump’s personal attack against Boasberg reflected his broader resentment at being increasingly constrained in recent weeks by court orders he believes are wrong, and his frustration at having his signature deportation policy be halted while subject to legal scrutiny.
It also followed the administration’s attempt to have Boasberg thrown off the case, complaining in a letter to the clerk of the US court of appeals for the DC circuit – a bizarre way to force a recusal – on grounds that he had overreached by improperly turning the matter into a class-action lawsuit.
According to the statute, the Alien Enemies Act can be invoked in the event of war, which only Congress can declare under the US constitution, or in the event of “predatory incursions” by state actors that amount to an invasion.
The Trump administration’s use of the law rests on the second clause concerning incursions. In court filings, the administration has said Trump determined that the US was being invaded by members of the Tren de Aragua gang in Venezuela, which acted as a proxy for the Venezuelan government.
Trump has the power as president to declare an incursion under the Alien Enemies Act, the filing said, and his decision was unreviewable by the courts following the US supreme court’s 1948 decision in Ludecke v Watkins, which said that whether someone was an enemy alien was up to the president.
But Trump and his political allies appeared to have conflated two issues; federal courts can still review whether Trump satisfied the conditions to declare an incursion under the Alien Enemies Act in the first instance.
The problem for the Trump administration is that in deciding Boasberg’s injunction blocking the deportation flights was unlawful, they ignored a verbal order from the judge at an emergency hearing on Saturday to turn around any deportation flights that had already departed.
That opened a second legal battle for the administration where the justice department was left to argue at a hearing on Monday that the orders had been unclear and that, in any event, Boasberg’s authority to compel the planes to return vanished the moment they left US airspace.
The extraordinary defenses by the administration suggested the White House took advantage of its own perceived uncertainty to do as it pleased, testing the limits of the judicial system to hold to account government officials set on circumventing adverse rulings.
At the hearing, the administration claimed it did not follow Boasberg’s verbal instruction to turn around planes that had already departed, because it had not been repeated in the written injunction he issued at 7.25pm ET on Saturday.
“Oral statements are not injunctions and the written orders always supersede whatever may have been stated in the record,” Abhishek Kambli, the deputy assistant attorney general for the justice department’s civil division, argued for the administration.
The judge appeared unimpressed by that contention. “You felt that you could disregard it because it wasn’t in the written order. That’s your first argument? The idea that because my written order was pithier so it could be disregarded – that’s one heck of a stretch,” Boasberg said.
Kambli also suggested that even if Boasberg had included the directive in his written injunction, by the time he issued the temporary restraining order the deportation flights had been outside the judge’s jurisdiction.
Boasberg expressed incredulity at that argument, too, explaining that federal judges still have authority over US government officials who make the decisions about the planes and that he had had the authority to order their return, even if the planes had been outside US airspace.
The Trump administration opened a third legal front in the Alien Enemies Act case, after it asked Boasberg in a late-night 35-page filing on Monday to dissolve the injunctions and dismiss the case.
The administration is currently subject to two injunctions: one order preventing the deportation of five Venezuelans who filed the initial suit challenging the use of the Alien Enemies Act, and a second order from Boasberg that expanded the initial order to cover anyone being removed under the Alien Enemies Act.
Administration lawyers affirmed in a separate filing on Tuesday that no deportation flights had departed the US after Boasberg’s written injunction had been issued on Saturday evening. Two flights took off before his 7.25pm ET order. One flight took off after, but that plane carried immigrants who were being deported under a different authority from the Alien Enemies Act.
