WASHINGTON (CN) — A federal judge on Friday suggested that the Donald Trump administration had ordered a mass deportation of Venezuelan migrants “in the dark” to delay legal scrutiny, as he reviewed the White House’s request that he walk back a temporary hold on the planned removals.
In a docket entry filed after the hearing, the court said another order on deportation flights was forthcoming.
Lawyers from the Justice Department made their case before District of D.C. Judge James Boasberg days after he stopped the administration from carrying out several deportation flights to El Salvador.
The court’s judgement was flawed, government attorneys said. They argued the White House’s actions were legal and that Boasberg did not have legal authority to review the president’s interpretation of a founding era law used to justify the removals.
“The government is complying with the law as it understands the law to be,” Deputy Assistant Attorney General Drew Ensign told Boasberg, a Barack Obama appointee, during a court hearing Friday afternoon.
The Trump administration last week inked an executive order mandating the deportation of hundreds of Venezuelan migrants whom federal officials accused of being members of transnational gang Tren de Aragua.
As legal backing for the move, the president cited a broad interpretation the 1798 Alien Enemies Act, a wartime law which allows the U.S. to remove foreign nationals during an invasion or other military conflict.
The White House had planned to send deportees to El Salvador. A Saturday order from the D.C. court stopped most of those proposed flights from taking off.
But the timing of Boasberg’s order proved controversial, as two deportation flights were already in the air by the time the judge issued his ruling Saturday evening. He told Ensign that the planes would have to turn around, but the pair of flights landed in El Salvador anyway.
At Friday’s hearing, a frustrated Boasberg needled the Justice Department attorney for details on whether the Trump administration had violated his order. He also criticized the government for using what he called “intemperate and disrespectful language” in some of its recent filings.
The judge demanded Ensign explain what he knew about the schedule of deportation flights during Saturday’s meeting. But the lawyer maintained that he was “unable to secure” any information from the government, even during a 38-minute recess which preceded Boasberg’s order.
“The [Department of Homeland Security] sent someone to argue the hearing who knew nothing about the facts about the law … that’s what you’re saying?” Boasberg shot back. “No one told you anything about these flights?”
Ensign affirmed that statement, adding that plaintiffs in the case had information about deportation flights that he did not.
Boasberg also pushed back on recent claims from the Justice Department that his order to turn planes around was given verbally, not in writing, and therefore was not enforceable. He asked Ensign whether he understood the intent of his declaration.
“I understood your intent that you meant that to be effective at that time,” the attorney replied.
The district judge further questioned Ensign’s contention that the Trump administration had followed the law, pointing out that the White House executive order had been “essentially signed in the dark” last week and deportees were detained and rushed onto planes shortly after.
“It seems to me that the only reason to do that is if you know it’s a problem and you want to get them out of the country before there are suits filed,” Boasberg said.
Ensign, meanwhile, claimed that the president’s interpretation of the Alien Enemies Act was not reviewable by the court as a class action. Instead, he said plaintiffs — migrant aid groups — could seek relief by filing individual challenges arguing their clients had been wrongfully detained and labeled as gang members. He argued there was an important distinction between challenging Trump’s executive order and making individual habeas claims.
But Lee Gelernt, an attorney for the American Civil Liberties Union, told Boasberg that the Venezuelan migrants set to be deported never had a meaningful chance to fight their classification as members of Tren de Aragua.
Boasberg appeared to agree, suggesting that the plaintiffs were not looking to get their clients released from custody but rather to prevent them from being deported to a place where they might be in danger. His Saturday order, the judge added, did not require the government to release potential deportees or block the U.S. from carrying out deportations through the legal process laid out in the Immigration and Nationality Act.
“They only ordered that the government could not summarily deport in-custody noncitizens subject to the proclamation,” Boasberg said.
The question at hand, the judge said, was whether the federal government can “summarily” deport people without individually determining whether they are members of Tren de Aragua or another such group. He argued the policy ramifications of using the Alien Enemies Act to make such a decision were “incredibly troublesome, problematic and concerning.”
“It’s an unprecedented and expansive use of an act that has been used … when there was no question that there was a declaration of war and who the enemy was,” he said. The Alien Enemies Act has only been invoked a handful of times in U.S. history, and only during major wars: the War of 1812, World War I and World War II.
Friday’s hearing comes as the Trump administration continues to deliberate on how to respond to a court order demanding details of the two deportation flights which landed in El Salvador last week in spite of Boasberg’s restraining order. The White House has said that cabinet-level officials are deciding whether to invoke state secrets privilege over those details.
Boasberg and the Justice Department sparred over that information this week. The government argued that it needed more time to make its determination. The judge demanded sworn testimony of the cabinet deliberations, provided Friday morning in a statement by Deputy Attorney General Todd Blanche.
The court has given the White House until Tuesday to sort out its decision on invoking state secrets privilege.
