OPINION:
Inferior federal court judges continue pushing the limits of their authority. Last week, one laid the groundwork for throwing Homeland Security Secretary Kristi Noem behind bars. Another ordered “Maryland Man,” the suspected illegal alien gang member, freed without delay.
The Republican-led Congress hasn’t done anything to quell this judicial rebellion aside from drafting a handful of sharply worded letters. Judge James “Jeb” Boasberg’s latest move proved so obnoxious that the U.S. Court of Appeals stepped in within hours to cancel the Monday hearing his honor tried to rush through the process to trap Ms. Noem.
Her supposed offense was her refusal to order planes flying outside U.S. airspace to “turn around” and set loose the dozens of criminal illegal alien passengers here, in a country where they don’t belong. The Supreme Court had already ruled that Judge Boasberg had no jurisdiction, but he insisted on holding someone in criminal contempt for flouting his unlawful command.
“The Court cannot at this juncture find probable cause that her actions constituted criminal contempt,” Judge Boasberg wrote. “A referral for prosecution, consequently, would be premature.”
To fill in the missing elements and establish probable cause in his mind, he summoned former prosecutor Erez Reuveni to testify about the incident. After the Justice Department dropped Mr. Reuveni, he joined Democracy Forward, a left-wing group that has launched 150 lawsuits this year to thwart Mr. Trump’s initiatives.
Mr. Reuveni might not be the most objective witness in a legally dubious proceeding. One of the greatest constitutional experts, Justice Antonin Scalia, used to argue that judges lack any power beyond deciding the cases and controversies that come before them.
“That includes the power to serve as a neutral adjudicator in a criminal case, but does not include the power to seek out law violators in order to punish them — which would be quite incompatible with the task of neutral adjudication,” he wrote.
When higher courts consistently work past midnight to intercept Judge Boasberg’s “emergency” dictates, it’s a sign his decisions are rooted more in partisanship than legal scholarship. The same can be said for Paula Xinis, a district court judge in Maryland.
She is equally enthusiastic about springing as many noncitizen miscreants as possible. Kilmar Abrego Garcia, an illegal alien accused by the government of being a gangbanger, a human trafficker and a wife beater, will walk free thanks to a court order she dropped Friday.
Apparently, the Justice Department can’t locate the formal deportation paperwork issued in 2019. Federal attorneys wasted no time persuading an immigration judge to print a new order, but that didn’t satisfy Judge Xinis.
“If, as Abrego Garcia suspects, Respondents will take him into custody this morning, then his liberty will be restricted once again. It is beyond dispute that unlawful detention visits irreparable harm,” she concluded.
The Justice Department pointed out in papers filed Sunday night that if Judge Xinis is correct that there is no final order of removal, then proceedings under the Immigration and Nationality Act are ongoing. That law divested district court judges of all jurisdiction in matters that haven’t been finalized.
Judges Boasberg and Xinis don’t care. They will take advantage of Washington’s dysfunction and use their gavels to impose the radical immigration policies they favor. Unless House and Senate leaders act, Mr. Trump’s agenda will stall. The reward for congressional cowardice will be the inevitable return to minority status after the midterms.
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