Is a district court judge the commander-in-chief of our armed forces? Does a district court judge have the right to overrule decisions regarding repelling an invasion of our country by another country? Who does the Constitution say is the country’s commander-in-chief?
The above questions have arisen because Judge James Boasberg decided to usurp the title of Commander-in-chief for himself. Judge Boasberg, an Obama-appointee, issued an emergency injunction (it wasn’t filed yet) and ordered the Trump Administration to turn around planes that were deporting dangerous Tren de Aragua Venezuelan gang members. The planes reached El Salvador and the criminals were transferred into custody there.
The DOJ contended that Judge Boasberg does not have jurisdiction over international airspace which is where the planes were when the order came down. They also indicated that any request from the judge for when such planes left US airspace was outside his jurisdiction. Once his order was received, it was complied with restricting the deportation of such individuals despite this being interference with the Commander-in-chief’s authorities in the Constitution.
All of this led to an interesting exchange between White House Deputy Chief of Staff Stephen Miller and Kasie Hunt of the Democrats chief PR outlet CNN. Hunt, like many in the fake news media, tried to push a ridiculous narrative that a single district court judge has the power to override the Commander-in-Chief’s authority to protect America from foreign threats.
Her weak attempts were refuted by Miller who actually understands the Alien Enemies Act of 1798 which was put in place to provide the necessary authority to the Commander-in-Chief to act.
Stephen Miller:
The President of the United States and his administration reserve all rights under the Constitution to conduct national security operations in defense of the United States.The Alien Enemies Act, which was passed into law by the founding generation of this country—men like John Adams—was written explicitly to give the President the authority to repel an alien invasion of the United States.
That is not something that a district court judge has any authority whatsoever to interfere with, to enjoin, to restrict, or to restrain in any way. You can read the law yourself. There’s not one clause in that law that makes it subject to judicial review, let alone district court review.
Hunt ignored Miller’s point and tried to force an admission that such things must go through the courts.
Stephen Miller:
Well, so first of all, there’s a term in law: justiciable. This is not justiciable. In other words, this is not subject to judicial remedy. When the President is exercising his Article 2 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 2 powers as Commander-in-Chief.
This comes down to a basic question. We have co-equal branches of government. Each branch is charged with specific powers that the other branches don’t have. Defense of the country from foreign invaders is a function assigned in the Constitution to the Executive branch. Judges do not have the ability to override that ability. The remedy in the Constitution for a rogue President would be impeachment.
Hunt switched gears and asked if Venezuela was invading America.
Stephen Miller:
This is a very important point. This is a Title 50 authority. It’s a Commander-in-Chief authority. Just to ask you a simple question—you talk about how the system works—does a district court judge have the right to direct or enjoin troop movements overseas? Yes or no?Kasie Hunt:
Well, Stephen, my question—if you could answer my question first, please. Is Venezuela invading our country in a way that would apply this way?Stephen Miller:
So I’ll answer yours, and you’ll answer mine. Under the terms of the statute, Tren de Aragua is an alien enemy force that has come here, as detailed at length in the proclamation, at the direction of the Venezuelan government. The statute says that a President has the ability to repel an invasion or predatory incursion that is directed by a foreign government.
The US Treasury, under then-President Joe Biden, sanctioned Tren de Aragua last summer, saying that the gang was involved in sex-trafficking across the US border.
Shortly after taking office in January, Trump declared Tren de Aragua a foreign terrorist organization. This placed the group in the same category as the Islamic State and Boko Haram, Nigeria’s Islamist militants.
So, the question remains. Does a district court judge have the right to dictate how the President exercises his authorities to defend the country from foreign invaders?
Hunt tried to edge toward judicial review being necessary to exercise authorities under the 1798 law.
Stephen Miller:
Yes, it is documented that Tren de Aragua was sent by the Venezuelan government in the proclamation. Here’s an even more important point. Under the Constitution, who makes that determination—a district court judge elected by no one, or the Commander-in-Chief of the Army and Navy? The President, and the President alone, makes a decision of what triggers that determination in the statute.
Hunt tried once again to misinform the public who were listening to this exchange.
Kasie Hunt:
Do you then think we are actually at war with Venezuela, the nation-state of Venezuela?Stephen Miller:
You’re not hearing me, and you’re not understanding me. Read the statute: Alien Enemies Act, 1798. It says if a predatory incursion is perpetrated by a foreign government, it lists the three qualifying actions. It could be an active war.Kasie Hunt:
It does say in the very beginning, there has to be a declared war against a nation or a state.Stephen Miller:
No. That’s not what it says. No. Wrong. Look at the statute. It’s on my account on social media.
Hunt continued to try and trap Miller into saying that the administration defied a court order or that the administration was above the law. Miller wasn’t having any of that and completely obliterated her arguments.
Eventually Miller turned the tables on Hunt and asked her very pointedly to answer his question on whether a district court judge has the right to enjoin troop movements overseas? Hunt refused to answer.
You can see the whole interview below.