In a meticulous 37-page opinion issued this morning, Judge James Boasberg has denied the Trump administration’s request that he vacate his temporary restraining orders that prohibit it from using President Trump’s Alien Enemies Act proclamation as the basis for immediately deporting detainees it has designated as members of the Tren de Aragua gang.
I summarize, and comment on, Judge Boasberg’s opinion below. But my topline point is that Boasberg’s sober and nuanced opinion powerfully refutes the cheap and vicious attacks that have been leveled against him. And that’s true whether or not higher courts ultimately agree with his legal assessments.
Here’s a guided tour of Boasberg’s opinion:
1. Boasberg refrains from “resolv[ing] the thorny question of whether the judiciary has the authority to assess” whether Trump’s proclamation is unlawful. He finds it unnecessary to reach that question because he determines that plaintiff detainees “are likely to succeed” on their claim that “they are entitled to individualized hearings to determine” whether they have been correctly designated as members of Tren de Aragua.
2. Boasberg presents the factual and procedural background of the case over seven pages (pp. 5-12). He observes that plaintiffs’ motion for a temporary restraining order “presented novel and nuanced legal issues — issues not easily deciphered in the abbreviated timeframe resulting from the Government’s decision to hastily dispatch flights as legal proceedings were ongoing, a move that implied a desire to circumvent judicial review.”
Given the wild claims that some have made about his order that the planes with detainees return to the United States, I’ll note that Boasberg quotes what he actually said:
The Court then told Government counsel: “[Y]ou shall inform your clients of [the Order] immediately, and that any plane containing [members of the class] that is going to take off or is in the air needs to be returned to the United States . . . . However that’s accomplished, whether turning around a plane or not [dis]embarking anyone on the plane . . . , I leave to you. But this is something that you need to make sure is complied with immediately.” [My emphasis.]
(The brackets and ellipses don’t conceal anything, as you can see for yourself by reading page 43 of the hearing transcript.)
3. In Part III.A of his opinion (pp. 13-18), Boasberg concludes that a petition for writ of habeas corpus is not the exclusive means of obtaining judicial review of Alien Enemies Act claims. The Administrative Procedure Act is also available, especially since plaintiffs are not seeking removal from confinement. Therefore, the court has jurisdiction to decide plaintiffs’ claims.
4. In Part III.B.1 (pp. 19-23), Boasberg states that, “[g]iven the broad powers the Executive possesses in national security and foreign affairs,” it is “a close call” whether he can address whether Trump’s proclamation is unlawful. He concludes that he need not decide this question at this time.
5. In Part III.B.2 (pp. 23-30), Boasberg holds that the five named plaintiffs and class members may challenge their designation as members of Tren de Aragua under the APA and that they may not be removed from the United States until those challenges have been adjudicated (though they may of course continue to be detained). Boasberg presents rulings that “establish conclusively that courts can determine an individual’s alien-enemy status—and are obligated to do so when asked.” In response to DOJ’s argument that a habeas petition is the only vehicle for such inquiry, he concludes that where “individuals do not seek release from confinement, a cause of action under the APA is appropriate (and indeed, may be the only way).” (His underlining.)
6. In Part III.B.3 (pp. 31-35), Boasberg concludes that detainees who can be deported likely have protections under the Foreign Affairs Reform and Restructuring Act (which codifies the United Nations Convention against Torture) from being removed to El Salvador and incarcerated there.
7. Boasberg then turns to the other factors that govern preliminary relief. In Part III.C (pp. 33-35), he determines that plaintiffs face irreparable harm if they are deported to Salvadorean prisons. In Part III.D (pp. 36-37), he assesses that the balance of equities “tips” in plaintiffs’ favor and that preliminary relief is in the public interest.