Should Judge James Boasberg Be Impeached?

Texas Representative Brandon Gill has publicly vowed to impeach Judge James Boasberg for enjoining President Trump's deportations of illegal aliens under the Alien Enemies Act of 1798. His vow has generated surprisingly little discussion about whether Judge Boasberg should be impeached. Commentators who treat that question as unmentionable are foolish.

I believe that the House should impeach Judge Boasberg. I remain openminded on whether the Senate should convict him and remove him from office.

The federal Constitution sets forth a system of checks and balances among "coequal branches" of government. The principle of "checks and balances," however, is an unwritten promise of the Constitution - albeit one directly contemplated by the Founding Fathers. This unwritten promise flows from the structure of the government established by the Constitution - a legislature with enumerated powers, an executive with the sole power to enforce the laws, and a judiciary with the power to interpret the laws and restrain unlawful or unconstitutional action by the other two branches.

The judiciary emphatically claimed its power in Marbury v. Madison, but its thirst for power was not quenched. Left virtually unchecked by the other branches, the judiciary has gradually fashioned itself as the only check in our system of government. Cultural forces have placed that aggregation of power beyond dispute. The rule of law, as intoned by the judiciary, must never be questioned. Thus, Congress lacks the willpower to act in contradiction to the judiciary, and the President will never commit political suicide by defying a court.

Look no further than the reaction that any proposal to impeach a judge draws. Howls that we are placing the rule of law in danger. But what the hell is the rule of law? Who gave an untouchable elitist in a black robe the sole authority to say what it is?

The Constitution places the authority over immigration in the hands of Congress and the President. It leaves no explicit role for the courts. The judiciary, however, has aggregated to itself the power to oversee immigration under a variety of due process arguments. Admittedly, the Supreme Court has not gone so far as Judge Boasberg has, but it has left plenty of doors open for activist judges like Boasberg to encroach on matters of government that they have no business being involved in.

If you put it that way, impeachment looks like a pretty good remedy to remind judges that other branches of government can act as checks and balances on the courts without violating the Constitution.

Impeachments of this nature are not unheard of in our nation's history. Congress voted to impeach Supreme Court Associate Justice Samuel Chase in 1804 for a series of questionable decisions and actions he made while sitting as a judge riding circuit in 1803-04. The Senate ultimately acquitted him.

In 1830, Congress voted to impeach a federal district judge, James Peck, for unconstitutional conduct toward a lawyer (punishing him for free speech). The Senate acquitted him though.

Thus, the earliest Congresses understood that they had the power to impeach a judge for unconstitutional conduct.

Judge Boasberg's encroachment on President Trump's lawful power to deport illegal aliens and his hounding of Justice Department lawyers meets the historical threshold for impeachment. No judge is above the Constitution. Congress should impeach him. Then we should have a fair and open debate about whether the Senate should remove him from office.