Last Saturday night, Chief Judge James E. Boasberg of District Court of the District of Columbia ordered any in-flight deportation planes carrying alleged Venezuelan Tren de Aragua gang members to return to the United States. Judging by the warm reception passengers on at least two flights received from El Salvador’s President Nayib Bukele, the judicial order countermanding the deportation flights never got through.
Conservatives are by now accustomed to broad temporary restraining orders from unfriendly judges. But many were still shocked by the spectacle of a judge ordering mid-air deportation flights to turn around.
Finally, a reason to check your email.
Sign up for our free newsletter today.
Tensions between the executive and judiciary over immigration and national security are nothing new. During the George H. W. Bush administration, then–Attorney General William P. Barr faced a similar challenge from an activist judge as he sought to interdict massive numbers of impoverished Haitian “boat people” attempting to reach the United States.
Barr’s success in getting the Supreme Court to countermand that judge shows just how far a Republican administration should be willing to go to protect the homeland. It also explains why the Supreme Court should act now to curb lower-court judges before they edge us into a constitutional crisis.
Following the 1991 coup against Haiti’s President Jean-Bertrand Aristide, some 80,000 Haitians took to the seas in an attempt to reach America. While those numbers may seem modest compared with the mass migrations of the Biden years, they posed, as Barr relates the story, a humanitarian and international crisis for the Bush administration.
In response, the Bush administration first relied on asylum screenings at the U.S. naval base in Guantanamo Bay, and then adopted a policy of high-seas interdiction, concluding that most of the Haitians were economic migrants, not asylees. The Coast Guard began intercepting them in transit and returning them home, increasing the number of monthly returns from hundreds to thousands.
Then the courts stepped in. As Barr explained, “This judge up in New York [Sterling Johnson] kept on putting stays on us and actually enjoining the Coast Guard and the Justice Department out on the high seas, claiming we were violating different things.” The Justice Department responded by taking the injunctions to the Supreme Court as quickly as possible to get them stayed — which it did successfully, twice.
Then the judge issued a third stay against the government’s interdiction policy. This prompted a call to Barr from National Security Advisor Brent Scowcroft, who asked, “When are you going to get that thing lifted? We have tens of thousands of people heading to the United States, and our ships are just stopped.”
“This is important,” Scowcroft said. “We can’t have a judge in New York enjoining military forces of the United States.”
Barr assured Scowcroft that he could secure a third stay. But Scowcroft wanted to know what the “plan B” was if Solicitor General Ken Starr failed to get it done. Barr explained: “My backup plan is that if we can’t get the stay, we move our ships within the three-mile limit of Haiti and stop the boats there — and then we’ll put [the migrants] back on shore.” Scowcroft objected that this would violate international law, to which Barr replied, “Yes, but it wouldn’t violate American law.”
Hoping to avoid such a drastic escalation, Barr went about getting the stay. Anticipating complaints from Starr that these continual requests of the Justices would “exhaust the Court’s patience,” Barr called him into his office and, before Starr could say anything, told him, “Ken, I need a [expletive] stay by three o’clock. And that’s an order.” It worked; Starr got him the stay. The Rehnquist Court, it seems, recognized that a little procedural irregularity was preferrable to a constitutional (or international) crisis.
The moral of the story is clear: even a conventional Republican like George H. W. Bush was willing to play hardball with the courts to stop mass illegal migration. After all, a judge can’t enjoin a naval blockade of a foreign shore—and such standoffs between the executive and an assertive district judge can escalate quickly. In the end, the Supreme Court recognized that the president’s national-security concerns can outweigh the scruples of a district judge and the activist lawyers urging extreme action.
It’s a lesson the current Chief Justice should know well: though Barr’s account doesn’t mention him, Ken Starr’s principal deputy at the time was a young lawyer named John G. Roberts. The Supreme Court’s patience is secondary to its duty to police lower courts when they intrude on core executive power. Barr got his stay. And similar action is warranted today.
Top Photo: More than 250 suspected gang members arrive in El Salvador by plane on March 16, 2025. (Photo by El Salvador Presidency / Handout / Anadolu via Getty Images
