The Trump administration on Monday brushed off a federal judge seeking to temporarily block the president from using an 18th-century law to deport alleged migrant gang members, claiming his oral directive — as opposed to a written order — was “not enforceable.”
“You felt that you could disregard it because it wasn’t in the written order. That’s your first argument,” Washington, DC, US District Judge James Boasberg grumbled in disbelief during a fact-finding hearing Monday.
“The idea that because my written order was pithier it could be disregarded, that’s one heck of a stretch I think.”
Boasberg had issued a temporary restraining order on Saturday trying to halt President Trump from invoking the Alien Enemies Act to target Tren de Aragua members, a ruthless Venezuelan prison gang whose membership in the US grew in the Biden administration.
Still, hundreds of individuals had been flown out to Venezuela over the weekend and weren’t brought back.
“Isn’t then the better course — to return the planes to the United States and figure out what to do, than say, ‘We don’t care; we’ll do what we want’?” Boasberg pressed DOJ lawyers at Monday’s hearing.
Justice Department attorneys said in a six-page filing Monday before the hearing that officials had “complied” with that March 15 order — and didn’t remove any of the five Venezuelans who sued the Trump administration over it.
“The government did so despite its powerful jurisdictional and other objections to the Court’s unprecedented assertion of judicial power to review the Proclamation,” added the DOJ attorneys in the filing.
The American Civil Liberties Union, which is repping the five Venezuelans, filed a motion earlier Monday claiming that the Trump administration may have violated the court’s order by flying roughly 250 alleged Tren de Aragua gangbangers to a mega-prison in El Salvador Saturday.
Trump’s DOJ countered in their filing that Boasberg issued his injunction at 7:25 p.m. after the extraction flight had been undertaken — and that the judge’s oral order “did not seek to interfere with the President’s Article II powers to conduct military operations overseas” by returning the suspected gangsters.
“[T]he written order did memorialize other, narrower oral directives from the hearing,” the Justice Department attorneys noted, adding that “an oral directive is not enforceable as an injunction.”
“Written orders are crucial because they clarify the bounds of permissible conduct,” they also said.
Boasberg, an appointee of former President Barack Obama, said from the bench that any aircraft transporting migrants out of the US must turn back, including any planes already in the air.
The judge’s brief written order, however, did not contain that language.
“In accord with this well-established law, the written minute order governed,” the DOJ attorneys wrote. “It enjoined the government from ‘removing’ the foreign terrorists ‘pursuant to the Proclamation.’”
“The government did not violate that injunction.”
Boasberg ripped into the Trump administration’s logic that because the planes flew out of US airspace, they were no longer subject to Boasberg’s jurisdiction and that authorities beyond the Alien Enemies Act were at play.
“I think my equitable powers are pretty clear that they do not lapse at the airspace’s edge. My equitable powers do not lapse at that point,” he shot back during the Monday hearing.
The Trump administration noted that two flights highlighted by the ACLU departed from the US before Boasberg’s written order and oral directives.
“As to any flights that were already outside US territory and airspace, anyone aboard had already been ‘removed’ within the meaning of the Alien Enemies Act and the Court’s order, and therefore were not covered by the order,” the administration argued.
The Trump administration has refused to disclose how many total flights have removed migrants under the Alien Enemies Act.
During Monday’s hearing, Boasberg expressed frustration that attorneys representing the administration couldn’t even explain why they weren’t answering his questions.
“Why [are you] showing up today and not having answers to why you can’t even disclose it,” Boasberg, perturbed about why the DOJ wouldn’t even state whether its rationale was because the answers were classified.
The judge directed the Trump administration to return Tuesday with an explanation for why it was refusing to answer his inquiries about how many individuals had been flown out of the US under the Alien Enemies Act and to which countries.
Boasberg’s temporary ruling has put a 14-day restraining order on the use of the war-time authority, which the Trump administration hopes to use to deport any migrant it identifies as a gang member without following normal criminal and immigration channels.
An appeals court is set to hold a hearing on the matter Friday.
