Setting aside questions about what plane took off when and what oral orders differed from what written ones, the fact remains that the Trump administration obeyed Federal District Court Judge James Boasberg’s March 15 instruction not to remove five named plaintiffs who challenged their deportation to El Salvador. The plaintiffs will get their day in court, and it is clear they will win.
Sometime early on March 15, President Donald Trump issued a proclamation ordering the “immediate apprehension, detention, and removal” of Venezuelan citizens who are 14 years of age or older, are members of the Tren de Aragua criminal gang, and are not naturalized citizens or lawful permanent residents of the United States.
Trump said the Alien Enemies Act gave him this authority because the organization is “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”
Lawyers for five Venezuelan immigrants who were arrested and detained by Immigration and Customs Enforcement sued in federal court, challenging the legality of Trump’s invocation of the Alien Enemies Act. The plaintiffs were granted a temporary restraining order, but the administration did not deport them.
Lawyers for the five plaintiffs then sought protection for the entire class of immigrants subjected to Trump’s proclamation, and it was granted. During this process, two planes took off from Texas for Honduras, with the final destination being El Salvador. At this point, Boasberg verbally ordered the planes to turn around. Later, he issued a written order enjoining the government “from removing” any more members of the class.
The Trump administration is now arguing that it had no obligation to turn the planes around because Boasberg lost jurisdiction over them once they left the country. His written order called only for no more removals, not the return of those already removed. A third plane also took off from Texas after Boasberg’s written order, but the Trump administration said the immigrants on that flight were deported through the normal process.
Whether or not the administration defied Boasberg’s order concerning the 137 Venezuelans deported to El Salvador under the Alien Enemies Act on those first two flights is an open question. What hasn’t been questioned by anyone is that the immigrants on those flights were in the country illegally and were subject to deportation.
What is also unquestionably true is that, as ordered by the judge, the administration did not remove the five named plaintiffs or the 258 additional Tren de Aragua members ICE is tracking still in the U.S. They will eventually get a court hearing and are likely to prevail, at least against the use of the Alien Enemies Act.
The Alien Enemies Act was passed in 1798 in response to fears that the new French Republic might invade the upstart U.S. It was invoked by presidents to deport immigrants during the War of 1812, World War I, and World War II. In each of those conflicts, immigrants challenged their detention and removal, federal courts heard their challenges, and in every case, the immigrants lost.
But each of those wars came with a declaration of war by Congress, and no such declaration has been made against Venezuela. The statute does contain an “or” clause, granting the president the powers listed under the act “whenever there is a declared war” or “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government.”
But whether courts can question a president’s declaration of an “invasion or predatory incursion” has never been litigated. Language from the most recent Alien Enemies Act litigation suggests a court should, for, in Ludecke v. Watkins, the Supreme Court wrote, “Resort to the courts may be had only to challenge the construction and validity of the statute and to question the existence of the ‘declared war.’”
In Ludecke, the plaintiffs stipulated that Congress declared war on Nazi Germany, and they said only that federal courts had the power to declare that war over. The Supreme Court disagreed.
Congress has not declared war on Venezuela. The Trump administration has argued in its legal brief that as long as the president can show “the arrival somewhere of people or things who are not wanted there,” it counts as an “invasion” pursuant to the act. This is a ridiculously low bar that would trigger the draconian war powers of a president with the arrival of even a single illegal immigrant in the U.S. The Supreme Court will not buy that argument, nor should it.
Trump’s goal of deporting as many illegal immigrants as possible is a worthy one, and the public overwhelmingly supports that objective. But on the same day that Trump deported 137 Venezuelans to El Salvador using the Alien Enemies Act, he deported another 124 through normal channels. He should stick to the normal nonwar power methods of deportation.