I have a great deal of sympathy for the complaint that, during both of his presidencies, Donald Trump has been habitually hampered in his legitimate use of power by solitary judges bearing bad-faith arguments. I also, as a political preference, want to deport illegal immigrants by the million and to deport violent immigrants by means of a trebuchet. But I am not at all convinced that, in the case of Judge Boasberg, we are witnessing an example of the same old capricious TrumpLaw that has afflicted this White House time and time again. In his post yesterday — in which he writes bluntly that “it is anything but clear that Boasberg’s order was lawless” — Andy McCarthy observes that:

The president ordered the deportation with no court process purportedly pursuant to the Alien Enemy Act, a late 18th century statute (now codified at Section 21 of Title 50, U.S. Code), which applies only to wartime conditions and has only been invoked three times in American history — during the congressionally declared wars of 1812, World War I, and World War II.

The powers contained within the Alien Enemy Act were conferred upon the president by Congress. This, naturally, creates a statutory question every time that the Act is used: Namely, “Has this law been followed by the executive?” In addition, the Alien Enemy Act is bound by the same Constitution as is any other law. This, consequently, creates a broader constitutional question: Namely, “Does this statute comport with the Constitution, which represents a higher law?” In this particular instance, both questions are in play. The statutory questions at hand are a) whether the Alien Enemy Act grants the president permission to deport individuals without due process outside of a congressionally declared war, and b) whether the president can deport “terrorists” who have never been declared as such. The constitutional question is whether, even if it is followed to the letter by the president, the Alien Enemy Act’s circumstantial waiving of due process is permissible, given the Constitution’s many protections of that right — which, in the Due Process Clause, remember, is applied to “persons,” not to “citizens.”

I do not know the answer to these questions. What I do know, however, is that they ultimately have to be mediated and resolved by the judiciary. And, because they have to be mediated and resolved by the judiciary, a judge is going to be involved. It would, of course, be better if that judge were nine judges, and if those nine judges all sat on the Supreme Court. But, practically speaking, that isn’t going to happen immediately in every case — especially when, as here, those whose due process rights are allegedly being violated are in the air on their way to a foreign prison.

Again, as a rule, I have grown tired of the games that certain judges have enjoyed playing with President Trump. Here, though, I’m unsure as to how this matter could be interrogated in any other manner. That the judiciary has the responsibility to superintend the executive’s use of statute is clear. So, too, is that the judiciary has the responsibility to determine constitutionality. When presented with a case asking it to do just that, what was it supposed to do? Assume that the government was acting lawfully? Refer to the size of Trump’s victory in the electoral college? Point to the tattoos of those who have been implicated? Perhaps every single person on that plane is a terrorist. If so, that doesn’t change the dynamic one whit.

Andy also writes:

My conclusion: The fight with an Obama-appointed judge over Venezuelan gang bangers it is portraying as terrorists is one the administration covets.

And:

Politically, the president knows that even if there are legal problems with his Alien Enemy Act theory, a large percentage of the country is outraged by the collapse of border security, rampant illegal immigration, and gang crime. That’s why Trump was elected, and he knows it.

This is true. But that’s also exactly why we have judges in the first place. A lot of the people who are in need of due process protections — that is, the people who need the right preserved in stone because it wouldn’t be granted to them willingly — are really unpopular. (Go back through the Supreme Court’s big speech or due process cases from the last hundred years and read up on the plaintiffs — many of whom were rapists, serial killers, child molesters, terrorists, and more.) It is, of course, a fact that the people involved in this case are reflexively loathed, and that it is no fun defending their rights. But that’s not a counterargument against the consideration of due process; it’s the whole point of the exercise. The protections being claimed here exist for exactly this moment. I agree that it creates perverse incentives that a person who illegally crosses the border is potentially entitled to far more process protections than a person who legally stays on the other side of it. But that’s just the way it is — and, if it’s not, the only way to test the waters is to bring the matter before the very judges who are now being accused of “interfering” with the law.