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“This was an Obama judge,” President Donald Trump remarked in November 2018, referring to a decision temporarily blocking his restrictions on asylum applications. “And I’ll tell you what, it’s not going to happen like this anymore.”
The ruling that irked Trump involved a provision of the Immigration and Nationality Act that says “any alien” may “apply for asylum” if he is “physically present in the United States” or “arrives in the United States…whether or not at a designated port of arrival.” Contrary to the plain language of that statute, Trump had issued a proclamation barring asylum applications by people who cross the southern border between ports of entry. The Department of Homeland Security (DHS) had implemented that restriction with rules that made such aliens categorically ineligible for asylum.
In response to a lawsuit by an immigrant rights group, Jon Tigar, a federal judge in Oakland, California, issued a temporary restraining order against the new asylum policy, noting that it contradicted federal law. But as Trump told it, Tigar had ruled against him for purely partisan reasons.
Although Trump’s comment about Tigar was mild compared to his subsequent attacks on judges who dared to disagree with him, it prompted a rare public rebuke by Chief Justice John Roberts, a George W. Bush appointee. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a statement released by the Supreme Court. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
It should be obvious by now that Trump is not thankful for an independent judiciary, which he views as an illegitimate obstacle to his policy agenda and personal whims. That much is clear from his over-the-top denunciations of recalcitrant judges and justices, whom he habitually accuses of political bias or cowardice, sometimes recommending their impeachment. It is also clear from the arguments that Justice Department lawyers have made in court, especially during Trump’s second term.
Again and again, Trump’s legal representatives have argued that the courts have no business reviewing his decisions or, at the very least, owe him the sort of deference that would allow him to do pretty much anything he wants. They have staked out that position in cases involving issues such as Trump’s tariffs, his invocation of the Alien Enemies Act, his National Guard deployments, his retaliation against political opponents, and his plan to replace the East Wing of the White House with a huge, gaudy ballroom.
Trump’s resistance to judicial review goes beyond criticizing the reasoning or conclusions of judges who rule against him. It amounts to a frontal assault on the rule of law and the separation of powers.
Trump Claims Unreviewable Authority to Deport ‘Alien Enemies’
On a Tuesday morning in March 2025, Trump was angry at James Boasberg, the chief judge of the U.S. District Court for the District of Columbia. “This Radical Left Lunatic of a Judge, a troublemaker and agitator who was sadly appointed by Barack Hussein Obama, was not elected President,” Trump wrote on Truth Social. “I’m just doing what the VOTERS wanted me to do. This judge, like many of the Crooked Judges I am forced to appear before, should be IMPEACHED!!!”
Three days earlier, Boasberg had temporarily blocked Trump’s attempt to summarily deport alleged members of the Venezuelan gang Tren de Aragua to a notorious prison in El Salvador. To justify those deportations, Trump relied on a highly dubious interpretation of the Alien Enemies Act (AEA), a law that Congress approved in 1798 amid a panic about a war with France that seemed imminent.
The AEA applies only when “there is a declared war” between the United States and a “foreign nation or government” or when a “foreign nation or government” has “perpetrated, attempted, or threatened” an “invasion or predatory incursion against the territory of the United States.” In those circumstances, it authorizes the president to deport “natives, citizens, denizens, or subjects” of that “hostile nation or government.”
Given that language, Trump’s use of the AEA made little sense. The United States was not at war with Venezuela, which had not launched or threatened an “invasion or predatory incursion.” Even assuming the DHS had correctly identified members of Tren de Aragua, that criminal organization was not a “foreign nation or government.” Nor were its members “natives, citizens, denizens, or subjects” of a “hostile nation or government.” But Trump aimed to eject Venezuelan detainees before any of that was sorted out, which explains why the DHS launched the operation on a Saturday without advance notice.
After lawyers at the American Civil Liberties Union (ACLU) caught wind of that plan, they filed a class action complaint on behalf of five named Venezuelan detainees and similarly situated individuals. Because it looked like the DHS was about to start flying detainees out of the country, the lawyers also filed an emergency application for a temporary restraining order (TRO). In light of the “exigent circumstances,” Boasberg quickly granted a TRO barring deportation of the named plaintiffs.
All of that happened before Trump published the proclamation that purported to authorize the deportations by invoking the AEA. That document did not appear on the White House website until 4 p.m. An hour later, Boasberg convened a Zoom hearing that pitted ACLU lawyer Lee Gelernt against Deputy Assistant Attorney General Drew Ensign. After hearing from both sides, Boasberg certified the class action and orally extended the TRO to protect “all noncitizens in U.S. custody” who were covered by Trump’s proclamation.
During the hearing, Ensign assured Boasberg that the named plaintiffs would not be deported while the case was pending. But he was cagey about what was happening to other members of the class. It turned out the flights to El Salvador had already begun, and they continued into the night, even after Boasberg made it clear that they needed to stop.
“Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” Boasberg told Ensign. “However that’s accomplished, whether turning around a plane or not embarking [detainees] covered by this [order] on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.”
That did not happen. A total of 238 Venezuelan detainees were flown to El Salvador that day on three flights from an airport in Harlingen, Texas, including one that departed after Boasberg had translated his oral instruction into a written order.
Trump was clearly intent on deporting his targets before they received any judicial review. And when Boasberg nevertheless managed to protect a handful of them, the president was livid. As Trump saw it, voters had given him “AN OVERWHELMING MANDATE” to crack down on illegal immigration, and Boasberg—who “was not elected President,” “didn’t WIN the popular VOTE (by a lot!),” “didn’t WIN ALL SEVEN SWING STATES,” “didn’t WIN [by] 2,750 to 525 Counties,” and in fact “DIDN’T WIN ANYTHING”—had no authority to question how he went about delivering on that promise. By presuming to do so, Trump said, Boasberg showed that he was unfit to serve as a federal judge and therefore deserved impeachment.
Like Trump’s 2018 slam against Tigar, that suggestion provoked a response from Chief Justice Roberts. “For more than two centuries,” Roberts said a few hours after Trump’s Truth Social rant against Boasberg, “it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”
In court, the Trump administration’s lawyers did not call Boasberg a “troublemaker,” an “agitator,” or a “radical left lunatic.” But they made it clear that they thought he should not be weighing Trump’s authority under the AEA, the legality of his proclamation, or even the government’s identification of individuals who allegedly were subject to it.
“The Court lacks jurisdiction because the presidential actions [the plaintiffs] challenge are not subject to judicial review,” Attorney General Pam Bondi and 10 of her underlings declared in a March 2025 motion asking Boasberg to lift his TRO. “The President’s authority and discretion under the AEA is not a proper subject for judicial scrutiny.” Th
