Republican presidential nominee former President Donald Trump speaks at an election night watch party, Wednesday, Nov. 6, 2024, in West Palm Beach, Fla. (AP Photo/Alex Brandon).
The federal judge who issued the court order preventing the Trump administration from using an 18th century wartime power to deport Venezuelan migrants to a notorious prison in El Salvador without due process is refusing to lift the restriction, a decision that is likely to further infuriate the president and his followers.
Chief U.S. District Judge James E. Boasberg, of Washington, D.C., on Monday issued a 37-page order in which he declined the administration’s request to stay the temporary restraining order prohibiting the Department of Justice from deporting any additional migrants through the Alien Enemies Act of 1798 (AEA).
The order was issued just a few hours before DOJ attorneys are scheduled to appear before a panel of judges on the U.S. Court of Appeals for the Fourth Circuit for oral arguments in the matter.
Trump earlier this month became the first president since World War II to invoke the AEA, which authorizes him to summarily remove “natives, citizens, denizens, or subjects” of a “hostile nation or government” when there is “declared war” against it or when it has “perpetrated, attempted, or threatened against the territory of the United States” an “invasion or predatory incursion.” In a controversial and novel use of the power, Trump declared the Venezuelan gang Tren de Aragua (TdA) had committed or attempted an “invasion” or “predatory incursion” such that any member of the group was summarily removable under the Act.
Five Venezuelan men challenged their impending deportations, claiming Trump’s proclamation invoking the act was unlawful because TdA was not a foreign government or nation, they were not members of the gang and thus were outside the scope of the proclamation, and even if they could be removed, they cannot be shipped to El Salvador “where torture likely awaits.”
Boasberg’s opinion provides a thorough summary of the numerous legal quandaries presented by the case, but he ultimately reasons that the plaintiffs were likely to win on the merits and thus kept the TRO in place.
“The Court need not resolve the thorny question of whether the judiciary has the authority to assess this claim in the first place. That is because Plaintiffs are likely to succeed on another equally fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all,” he wrote. “It follows that summary deportation following close on the heels of the Government’s informing an alien that he is subject to the Proclamation — without giving him the opportunity to consider whether to voluntarily self-deport or challenge the basis for the order — is unlawful.”
The opinion also cites to a litany of previous cases in determining that the specific questions at issue in the case were within the purview of the court’s jurisdiction.
“The named Plaintiffs, on behalf of themselves and their class, contest their designations as members of Tren de Aragua and argue that they must be given an opportunity to challenge Defendants’ position that they fall within the Proclamation. Because the caselaw is clear that such questions are reviewable, and because those outside the bounds of the Proclamation’s definition of ‘alien enemies’ are not removable under the Act, Plaintiffs are likely to succeed on the merits of their claim.”
The judge further reasoned that keeping the TRO in place would do little damage to the government, as the order only requires abstaining from removing alleged TdA members “solely on the basis” of the AEA.
“[T]he TROs impose no restriction on the Government’s apprehending alleged members of Tren de Aragua under the contested authority of the Proclamation, not does it require that any individual — dangerous or otherwise — be released from custody,” Boasberg wrote. “The noncitizens comprising the class are already in United States custody, and any actual Tren de Aragua member is already subject to deportation as a member of an FTO, so there is little additional harm to the public by temporarily preventing their removal.”
Boasberg’s stifling of the Trump administration’s plan to fast-track deportations and his contentious exchanges with DOJ attorneys has led to the President and his allies lashing out at the judge and calling for his impeachment. Trump last week referred to Boasberg as a “radical” and a “lunatic” when demanding he be impeached. Just hours later, a House Republican introduced articles of impeachment against the judge.
Trump’s diatribe against Boasberg led to a swift rebuke from Supreme Court Chief Justice John Roberts, who issued a rare public statement saying that “impeachment is not an appropriate response to disagreement concerning a judicial decision.”
Making matters worse, the administration appears to have intentionally flouted Boasberg’s initial March 15, oral order to have two planeloads of migrants being deported under the Alien Enemies Act returned to the country. During a hearing last week, Boasberg vowed to “get to the bottom of whether they violated my word and who ordered this and the consequences.”
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