Boasberg’s Bench Coup: When a Judge Becomes Commander-in-Chief

Last week a unanimous Supreme Court gave the following instruction to a district court judge:

“The District Court should clarify its directive, with due regard for the deference owed to the Executive Branch in the conduct of foreign affairs.”

In the matter of the deportation of members of Tren de Aragua (TdA) — a Venezuelan criminal gang — Judge James Boasberg in Washington D.C. decided on April 16 that there is probable cause to believe that members of the Trump Administration have committed criminal contempt by violating a Temporary Restraining Order issued by him in the evening on March 15, 2025. That Order was to prevent the deportation of any alleged TdA member who was being removed from the United States pursuant to an invocation of the Alien Enemies Act. Based on information that planes were in the air taking TdA members to El Salvador where they would be held pursuant to an agreement between the United States and that country, Judge Boasberg instructed the attorney for the government to communicate his order to whoever was responsible for the operation to have the planes turned around, or to have the persons on the plane returned back to the United States if the planes had already landed.

A dispute has now lasted for a month over the specifics of what Judge Boasberg did or did not direct the Administration to do on March 15 — both during the hearing and later in a short “Electronic Order” entered into the docket of the case. But in his response to the Administration’s argument that it technically complied with what he specifically directed it to do, Judge Boasberg seems to have not heeded at all the words of the Supreme Court a different judge in a different court last week in the sentence quoted above. His 46 page opinion outlining the facts and circumstances — as he sees them — related to the events of March 15 and there after really comes down to the following:

“You know what I meant.”

At bottom, that is the crux of Judge Boasberg’s probable cause finding that the Trump Administration willfully defied his order that it not remove from the United States members of a “putative class” he declared in the fast moving events on that Saturday night. He goes over the events of the day and the two hearings in the late afternoon and evening of March 15, his statements and pronouncements directing what steps the Government must take, but tends to not quote himself completely in each instance as to exactly what he said.

Here are his exact words from the pertinent passages from the transcript as well as from the Electronic Order issued approximately 30 minutes after the hearings ended. From page 42:

So I find that a TRO is appropriate for the class members, and it would be to prevent the removal of the class for 14 days or until further order of the Court. And the class will be all noncitizens in U.S. custody who are subject to the proclamation of March 15, 2025 and its implementation.

And I will issue a minute order memorializing this so you don’t have to race to write it down.

From page 43:

So, Mr. Ensign, the first point is that I — that you shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.

Curiously, he also said this — from page 44:

Again, just so we are clear, if planes have already landed and discharged their occupants, asidefrom the five plaintiffs I enjoined earlier, then this order — I don’t have jurisdiction to require their return.

Less than an hour after the hearing ended, the following Order appeared on the docket of the case:

2) The Government is ENJOINED from removing members of such class (not otherwise subject to removal) pursuant to the Proclamation for 14 days or until further Order of the Court;

As everyone is pretty much aware, the Supreme Court later granted a stay on the enforcement of this Order, and eventually vacated the Order because the Plaintiffs in the case had filed in the wrong court. The Court in DC lacked jurisdiction to consider the alleged causes of action or to enter any remedy on the plaintiffs’ behalf — including preliminary relief such as the TRO.

There is a significant body of Supreme Court authority that holds parties in litigation before a federal court must comply with orders of that court even if those orders are later reversed due to some legal infirmity or defect. Even after reversal, the prior failure to comply with the order while it was still in effect is punishable by contempt — both civil contempt and criminal contempt.

Judge Boasberg cites many of those cases in finding “probable cause” that individuals in the Trump Administration did commit criminal contempt in their willful failure to comply with his Temporary Restraining Orders entered on March 15, 2025 — principally his order to return to the United States any illegal aliens who were removed pursuant to the Proclamation.

But a big issue that I expect will become prominent once this matter goes beyond Judge Boasberg’s courtroom is the fact that none of those prior cases involved a clash between two co-equal branches of government. Never has the Supreme Court faced a review of a charge of criminal contempt for willful violation of an Order entered without jurisdiction when that Order directed the Executive branch to take specific action that, as later determined, the lower court lacked the authority to issue.

To summarize: On behalf of five illegal aliens, the ACLU went into a District of Columbia federal court and invoked that Court’s jurisdiction and equitable powers to get a TRO issued barring the Executive branch for removing those; a single district judge asserted its jurisdiction and powers to order the Executive branch to not CONTINUE with what it was doing, and to take specific action to undo what was already done; the district judge did not affirmatively determine he had the authority to do that; and it was determined later, in fact, he did not have the authority.

Judge Boasberg says in his opinion that he did consider and concluded that venue and jurisdiction were proper in the District of Columbia. Even if he was wrong in doing so, he claims that long-standing case authority supports the view that the parties were nevertheless bound to comply with his orders until a higher court determined the jurisdictional question to the contrary. But a big issue I have with this observation by him goes back to criticisms I made at the time — he never seriously considered the jurisdictional challenges raised by the Government — he plowed right over the top of them to give the plaintiffs what they were asking for. It was very obvious that his own urgency was being driven by the prospect that potential class plaintiffs were being sent out of the country and — as he recognized in one of the excerpted passages above — once those individuals arrived in a foreign country they would be beyond his jurisdiction to act.

A brief digression — Judge Boasberg is critical throughout his Opinion of the efforts by the Administration to remove the TdA members subject to the Proclamation before the judicial process could act to prevent that from happening. He says that suggests the Government knew what it was doing was potentially unlawful.

How much did Judge Boasberg really consider whether there was jurisdiction in his court for the claims made by the five named plaintiffs, and through them to the individuals on the planes? This question needs to keep 3 issues in focus:

1. It is the burden of the plaintiff to properly invoke a federal court’s jurisidiction when filing a complaint and summoning the opposing party before the court.
2. The plaintiffs and ACLU weren’t simply dragging some other private party into the court and asking it to restrain the private party’s ongoing conduct. They were dragging the Executive Branch into court and asking it to restrain an ongoing government operation that Congress has granted near total jurisdiction over to the Executive — and at the same time purposely excluded district courts from having jurisdiction over.
3. A federal district court has an independent obligation to make its own considered determination that the plaintiffs have properly invoked the court’s jurisdiction, and that the plaintiffs are properly in the court where they have filed. This decision MUST be made while mindful of the implications involving No. 2.

The Judge did address the “venue” question briefly — whether the case was properly filed in D.C., or whether it should have been filed in Texas where the plaintiffs were all physically located as is normally required for “habeas” claims. From page 22 of the transcript:

COURT: I guess your — do you want to dismiss your habeas claim, Mr. Gelernt? I don’t know. It’s certainly not your primary claim. You may have other reasons for including it.

MR. GELERNT: Your Honor, I think if the Court felt like it needed us to dismiss the habeas in order to issue a class-wide TRO, then we are prepared to do that. We certainly don’t feel like we need it.

COURT: ….. And so as brief as my research has been at this period of time, I don’t think that venue bars certification. I will, for clarity, I will grant the plaintiffs’ — first grant the plaintiffs’ motion to dismiss their habeas count. So that count is dismissed without prejudice at this point.

One thing that passage reflects is where everyone’s concern was — broadening the scope of the TRO as far as possible in order to stop the deportations.

For clarity it is necessary to understand that the class certification was made based on a claim alleging a violation of the Administrative Procedure Act — the APA. The Government had argued — correctly — that habeas actions can’t be brought as part of a class action because each habeas claim is unique to the individual detainee raising it. In addition, if habeas claims could only be brought in the district where the detainee was being held, you could never have a nationwide class of habeas claimants.

The habeas claim was dismissed, but there were other claims for relief in the Complaint — one was that the legally required procedures for removal under immigration rules and regulations were not followed, and that gave rise to a APA claim. That was the claim relied upon by Judge Boasberg to grant class certification, thereby extending his TRO to all class members, including those on the planes headed for El Salvador.

The Supreme Court later said that was his error — an APA claim is not a substitute for a habeas claim when the relief sought by the plaintiff is available through a habeas action. All parties agreed they could have obtained the relief they sought through a habeas action. The Supreme Court said if they could then they had to seek it through a habeas action. If they had to seek it through habeas then the special venue rules for habeas actions applied — file in Texas, not D.C.

All of this will now be part of the issue of whether the erroneous decision by Judge Boasberg to assert jurisdiction and enter the TRO was “frivolous” to the degree that the Administration should escape the consequences for having failed to comply. While the substantive question was not necessarily a foolish one, as I have said from since my first comments on March 16, Judge Boasberg did not seriously consider them. His comments and conduct all throughout the day on March 15 concerned whether individuals not before him were being removed from the country, and thereby beyond his authority. The urgency of his actions and the shortcuts he took in analysis had a single motivation – to stop from happening whatever was happening. The fact that the Government failed to give him complete and accurate information in the evening on March 15 only made him more determined to accomplish his goal.

This conclusion is borne out in the Opinion issued finding probable cause — from p. 6:

The Government began by objecting that venue was improper because Plaintiffs’ claims could be raised only through a petition for habeas corpus in the federal district in Texas where they were being held, not in the District of Columbia. Id. at 6–11.

Noting that it would benefit from further argument on the issue, the Court pivoted to addressing Plaintiffs’ concerns “about imminent deportation.” Id. at 11. It asked the Government point blank whether there were any “removals under this Proclamation planned . . . in the next 24 or 48 hours.”

While he did go back to the venue question later as noted above, it was in the context of how the habeas problem could be avoided by dismissing that count, which would then allow for a class certification over the far larger group of deportees to be granted. Judge Boasberg never addressed the three issues listed above — whether the plaintiffs had properly invoked his jurisdiction; the fact that Congress has nearly eliminated district courts as having a role in immigration proceedings; and whether he actually had jurisdiction to act. His overriding concern expressed several times over the course of the two hearings was whether deportations were taking place and how he might stop them if they were.

The issue of jurisdiction and venue might not have been frivilous, but Judge Bosaberg’s treatment of them struck me as having been such.

Now turning to the part of his opinion regarding the allege willful failure of the Administration to comply with his directive to return the planes and those on board back to the United States. Before I do that, I’m going to address some “factual” statements made by him about the events of that Saturday that I think are open to a bit of debate. As I have noted many times, I listened to both hearings on March 15 — from 5:00 to 5:22, and resuming at 6:00 and continuing to 6:53.

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