Washington D.C.’s chief federal judge has rebuked the Trump administration’s decision to dust off a 227-year-old wartime emergency measure to rapidly deport Venezuelans.
“The policy ramifications are incredibly troublesome,” U.S. District Judge James E. Boasberg told the administration Friday afternoon.
It’s “awfully frightening,” Boasberg said, that the government could summarily label any migrant an alien “invader” who could then be denied a day in court — and, as in this case, sent to an El Salvador prison accused of torturing and dehumanizing its inmates.
Friday’s court hearing capped a week of rising constitutional tensions, as the White House defends its reliance on the 1798 Alien Enemies Act as essentially unquestionable in the face of questions by a trial court judge.
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Human rights advocates have challenged President Donald Trump’s use of that law to dramatically intensify his mass deportation plans. The government continues to resist telling Boasberg exactly when deportation flights took off from U.S. soil, and whether the timing meant that U.S. Immigration and Customs Enforcement officials ignored his Saturday evening verbal order halting them until his written order was filed on the court docket.
That strain continued from the start of Friday’s hearing, with the judge excoriating Justice Department lawyers for the tone they used in court papers, commenting on the “intemperate and disrespectful language I haven’t seen from the United States.”
Boasberg then forcefully demanded that Drew Ensign, the Department of Justice’s new deputy assistant attorney general overseeing immigration matters, explain whether verbal orders carry the same legal weight as written ones.
“I understood your intent that you meant it to be effective at that time,” Ensign responded.
Ensign, who was recently hired at the Justice Department, tried to recast the legal dispute by human rights advocates as a “categorical challenge” to executive power that questioned the government’s ability to detain gang members. Boasberg didn’t let that construction stand for long.
“What they’re saying is, ‘Don’t remove me, particularly to a country that’s going to torture me.’ That’s their challenge,” the judge said.
Boasberg repeatedly reminded the lawyers in court — and the many journalists tuning in — that this case does not call into question presidential powers. But it serves as a clarification of what exactly the Trump administration is up to, and what rights people have to challenge arrests that could result in rushed removals to El Salvador’s growing Terrorism Confinement Center. The Salvadoran facility is on track to be the largest prison in the world.
“What’s concerning me is … why is this proclamation essentially signed in the dark? And people rushed onto planes? It seems to me, the only reason to do that is if you know it’s a problem,” Boasberg said.
He also questioned the timing; the White House posted the executive order at 3:53 p.m. on Saturday, March 15, and had dozens of Venezuelan migrants on planes leaving U.S. airspace by 7 p.m.
“It’s certainly true that ICE had advanced notice of this proclamation, because it’s impossible this could have happened within two hours,” Boasberg said.
“That seems like a reasonable inference,” Ensign replied.
But when Boasberg pressed the DOJ for more details on the timing of the plane departures, government lawyers did not answer.
“Can you tell me a little about the timing of this?” Boasberg asked.
“Your honor, I don’t have knowledge of operational details,” Ensign replied.
Addressing questions about who exactly on these three planes that left the United States on Saturday was subject to the president’s new orders targeting Venezuelans, the DOJ argued that a third plane was full of migrants already scheduled for removal anyway based on other legal justifications.
“Everyone on that third plane had a final order of removal,” Ensign said.
“To El Salvador?” the judge shot back.
Trump’s March 15 executive order stated: “I proclaim that all Venezuelan citizens 14 years of age or older who are members of TdA, are within the United States, and are not actually naturalized or lawful permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”
Left unclear is the extent to which the Trump administration’s Justice Department is willing to suspend the legal rights of anyone it deems an “enemy alien.” When the judge questioned what would happen if ICE agents incorrectly identify someone as a Venezuelan gang member — or even a Venezuelan — government lawyers said that person can challenge the deportation with a traditional habeas corpus petition from behind bars.
The administration’s lawyers did not offer any clarity as to what that process would entail for someone who is no longer in U.S. custody, imprisoned in a facility where guards immediately shave inmates’ heads and treat them as de facto violent terrorists. President Nayib Bukele of El Salvador has said that “they will never get out.”
Boasberg stressed that Trump’s citation of the Alien Enemies Act is an “unprecedented and expanded use” of a law that has only been invoked during the War of 1812, World War I and World War II. And he expressed deep reservations about its current usage when speaking to a lawyer with the American Civil Liberties Union in court.
“I agree with you that this is a long way from the heartland of the act,” Boasberg said.
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Jose Pagliery is a reporter at NOTUS.
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