The White House is hopeful it will win its court fight over migrant deportations the traditional way: through legal filings, appeals and ultimately a favorable ruling from a high court.
But President Donald Trump and his allies in Congress are more willing than ever before to press a full public and political challenge to the judiciary’s authority over presidential power. The debate coursing through the White House and Capitol Hill now is just how far that willingness can go.
“The people who came into the administration in the second term are far more radical than the first termers were, and they feel like the way to advance their agenda is to push the limits everywhere,” a conservative strategist with ties to the White House told NOTUS. “So they’re pushing the limits of executive orders. They’re pushing the limits of judicial ruling.”
A source familiar with the planning said the White House has prepared responses for any possible outcome of the case now before a federal appeals court, which hinges on whether to eliminate a U.S. district judge’s restraining order on the fast-track deportations. Details of those potential responses are being held close.
Some allies believe that any action should start in Congress, after Trump called for D.C. Chief Judge James Boasberg, who initially tried to block the administration’s efforts to deport Venezuelan migrants to El Salvador by plane, to be impeached.
“Because the Chief Justice has refused to get his judicial house in order, Congress is going to do it for him,” said Mike Davis, founder of the Article III Project, a conservative advocacy group, and a Trump ally who called on the White House to defy what he calls Boasberg’s “unlawful” order.
The wheels are only just starting to turn on Capitol Hill. Senate Judiciary Chair Chuck Grassley is preparing to hold hearings on judicial powers, according to two people familiar, an answer to Trump’s demand the judge be impeached. House Judiciary Committee Chair Jim Jordan said he wants to take the lead on holding similar hearings in his chamber, with the first one scheduled for next Tuesday.
“The recent surge of sweeping decisions by district judges merits serious scrutiny. The Senate Judiciary Committee is exploring potential legislative solutions and will closely examine this topic in an upcoming hearing,” Grassley spokesperson Clare Slattery said in a statement.
Now Republicans in Congress are faced with pleasing their party’s leader while trying to figure out what can actually be done to limit judicial powers. Two other Republicans familiar told NOTUS it’s clear Republican leadership on Capitol Hill does not want to move forward with efforts to impeach lower-court judges who defy Trump. Few — if any — want to say that and risk upsetting the president.
House Speaker Mike Johnson told reporters this week “everything is on the table” for Boasberg, but he called impeachment “an extraordinary measure.” House leadership has instead pointed to Rep. Darrell Issa’s bill that would “limit judicial overreach” as a way to restrict injunctions.
Republican Majority Leader John Thune also dodged the idea of impeaching Boasberg, reminding reporters that the process originates in the House. Senate Republican leadership is separately interested in Sen. Josh Hawley’s bill that is similar to Issa’s, the two people familiar told NOTUS.
Other conservatives believe it will be the administration in the driver’s seat, in part because it is those in charge in the White House who have long wanted to expand presidential power, like the powerful Office of Management and Budget Director Russ Vought. He held the same position during Trump’s first presidency, but now has further-reaching support to achieve his goals.
“The White House is taking aggressive steps to preserve the sperartion of powers that radical leftist judges are trying to strip the executive branch of,” a White House official said in response to this story. “We’ve always known that the Supreme Court would be the likely final destination for many of these lawsuits and we fully anticipate winning there.”
Pillars of the MAGA movement are now threatening to openly defy court orders going forward.
“What you’re seeing is a very concerted plan unfold,” said the strategist close to the White House.
Trump’s aides and allies have castigated Boasberg — without evidence — as a left-wing activist who is illegally attempting to control a president’s ability to dictate foreign policy. Boasberg has declined to lift the block of the administration’s deportation flights under the 1789 Alien Enemies Act, questioning what the administration claims is a necessary tool to rapidly deport alleged Venezuelan gang members.
On Monday, a three-judge panel on the DC Circuit Court of Appeals echoed Boasberg’s concerns about the way migrants were rushed to a Salvadoran prison notorious for alleged mistreatment of inmates without ever being given the ability to challenge their removal.
But the underlying question is how much of a check the judiciary can place on a president’s foreign policy and national security efforts.
“The fight is not about the hearings,” said one person close to the White House, who argued that the Department of Homeland Security being forced to extend more due process to migrants wouldn’t be the worst conclusion. Instead, they said, “It’s about preserving presidential action.”
The president has had mixed success in court nearly two months into his second term. He has faced at least 15 nationwide injunctions, according to Axios, on his efforts to either remake or severely reduce the federal government.
But striking back at the judiciary by impeaching unfavorable judges would be both a largely unprecedented step and politically challenging.
In the Senate, the process would require two-thirds of senators to vote in favor of conviction, which is unlikely to happen with the slim Republican majority. In the House, Republicans privately expressed doubts that conservative Rep. Brandon Gill’s impeachment articles against Boasberg would gain traction with enough Republicans.
“The Speaker’s message is that we’ve got a variety of remedies that we can choose from, and right now we’re moving with Darrell Issa’s bill,” Gill told reporters.
Democrats, meanwhile, are fighting back against the idea of stepping in to restrain or impeach Boasberg.
“Drop it,” Minority Leader Hakeem Jeffries told reporters. “It’s not happening. You don’t even have the votes in the House of Representatives, and it’s definitely not happening in the United States Senate, where you need two thirds of that institution. Why are Republicans obsessed with trying to please Donald Trump, as opposed to trying to help the American people?”
Rep. Jamie Raskin, the top Democrat on the House Judiciary committee, said Republicans were trying to “placate Donald Trump” by railing “against the federal judges who are being threatened all over the country.”
He added that he, too, doubts bills restricting judges would go anywhere in the Senate.
Judicial impeachment has a long history of facing long odds.
Only 15 federal judges have been impeached by the House of Representatives in the country’s history, and only half of those were convicted by the Senate, according to the Federal Judicial Center. Three others resigned to avoid impeachment, according to the judiciary’s administrative office.
The most recent case was the unanimous Senate vote against G. Thomas Porteous Jr. in Louisiana’s eastern district, who the chamber found guilty in 2010 for selling favors to a former law partner. But that example shows just how extensive misbehavior typically must be to get this kind of attention: he’d already been suspended without pay for two years prior to his removal.
There have been partisan fights over judges in the past that have led to impeachments, but even then, they were largely rooted in judicial impropriety or outright corruption. In 1986, after 50 years without a successful judicial impeachment, Congress targeted the chief federal judge of Nevada, Harry Claiborne, who had already been sentenced to two years in prison for tax evasion.
In recent years, as the country’s escalated towards a more partisan divide, legal scholars have toyed with the idea that federal judges could be removed without being impeached.
A 2006 paper by constitutional law professors Saikrishna Prakash and Steven Smith, at the University of Virginia and the University of San Diego, respectively, kicked off a firestorm by arguing that “the Constitution never specifies that impeachment is the exclusive means of removing officers.” Article III dictates that judges “shall hold their Offices during good Behaviour.” But unlike congressional rules that allow for impeachment of executive officers for “high crimes and misdemeanors,” the authors pointed out that the nation’s founders left open the possibility to crack down on judges who exercised a little too much independence.
“Our point is that Congress could provide for the removal of federal judges for offenses not constituting high crimes and misdemeanors,” they argued. “Misbehavior, a standard less strict in our view, is enough to remove federal judges.”
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This story has been updated with additional comment from a White House official.
Jasmine Wright, Daniella Diaz and Jose Pagliery are reporters at NOTUS.