DOJ Argues Courts Can't Review Tariffs, Deportations, Deployments
DOJ Argues Courts Can't Review Tariffs, Deportations, Deployments
The News
President Trump's lawyers have repeatedly told federal courts that judges have no business reviewing his decisions on tariffs, deportations under the Alien Enemies Act, and National Guard deployments — or, at minimum, owe him deference broad enough to cover nearly anything he does.
That is an argument the administration has made in filings and hearings. It is not something a court has ruled.
The pattern was laid out Sunday in a long analysis by Jacob Sullum, published by Reason and carried by Yahoo News, which catalogues the cases where Justice Department lawyers have staked out that position.
Beyond tariffs, the Alien Enemies Act and Guard deployments, Sullum writes that the same claim has surfaced in cases over Trump's retaliation against political opponents and his plan to replace the East Wing of the White House with a ballroom.
Timeline
After federal judge Jon Tigar in Oakland blocks Trump's proclamation barring asylum applications from people crossing between ports of entry, Trump says, "This was an Obama judge." Chief Justice John Roberts issues a rare public rebuke.
The Department of Homeland Security launches an operation to remove alleged members of the Venezuelan gang Tren de Aragua to a prison in El Salvador, without advance notice. ACLU lawyers file a class action on behalf of five named Venezuelan detainees, plus an emergency application for a temporary restraining order. Chief Judge James Boasberg of the U.S. District Court in Washington grants a TRO for the named plaintiffs.
The proclamation invoking the Alien Enemies Act is posted on the White House website — after the litigation had already begun.
Boasberg convenes a Zoom hearing between ACLU lawyer Lee Gelernt and Deputy Assistant Attorney General Drew Ensign, certifies the class, and orally extends the TRO to "all noncitizens in U.S. custody" covered by the proclamation. He tells Ensign any plane carrying the detainees "needs to be returned to the United States."
238 Venezuelan detainees are flown to El Salvador on three flights out of Harlingen, Texas — including one that departed after Boasberg put his instruction in writing.
Trump posts on Truth Social that Boasberg is a "Radical Left Lunatic of a Judge" who "should be IMPEACHED!!!" Roberts responds publicly again.
Sullum's analysis of the pattern is published.
Reactions
Roberts, in his 2018 statement: "We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."
Trump's position, as he put it on Truth Social, is that voters gave him "AN OVERWHELMING MANDATE" and that an unelected judge has no authority to question how he delivers on it.
Sullum's verdict is that the administration's resistance to judicial review "amounts to a frontal assault on the rule of law and the separation of powers."
The two source articles carry no fresh response from the Justice Department to the analysis.
What's Next
The underlying fights are still live. Challenges to the tariffs, the Alien Enemies Act removals and the Guard deployments remain in the federal courts, and the open question is whether the Supreme Court ever endorses any version of the unreviewability argument — and if so, how broadly.
More
Congress passed the Alien Enemies Act in 1798, amid a panic over a war with France that looked imminent. By its text it 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 U.S. territory. It then authorizes the president to deport "natives, citizens, denizens, or subjects" of that hostile nation.
Sullum's argument against the 2025 invocation rests on that language: the United States is not at war with Venezuela, and Tren de Aragua — a criminal organization — is not a foreign nation or government.
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