Trump’s sudden order drew the executive branch into yet another showdown with the federal judiciary. While the deportation flights were in the air on Saturday, Judge James Boasberg ordered the Trump administration to turn the planes around while legal proceedings continued. The flights instead continued to their destination in El Salvador. The Venezuelans are being held in a local prison there under an agreement between the Trump administration and President Nayib Bukele’s government, which the U.S. reportedly is paying $6 million to accept 300 alleged gang members and imprison them for a year.
In a court filing late on Sunday titled “Notice to the Court,” the Justice Department said it “object[s] to this court’s assertion of jurisdiction, including over the president’s exercise of powers vested in him by Article II.” While the department stated that it would not deport the five plaintiffs in that particular lawsuit, it also claimed that it “will continue to protect the United States using authorities other than the proclamation.” Attorney General Pam Bondi took the unusual step of signing the court filing herself, along with the rest of her senior staff.
Its legal argument for defiance, other than raw power, is that the judge’s order does not apply once the foreign nationals are in international waters and airspace. “There was a discussion about how far the judge’s ruling can go under the circumstances and over international waters and, on advice of counsel, we proceeded with deporting these thugs,” one unnamed senior White House official reportedly told Axios.
Just as troubling is the Trump administration’s invocation of the Alien Enemies Act of 1798. The archaic founding-era law allows the president to make proclamations that allow entire groups of foreign nationals, on a country-by-country basis, to “be apprehended, restrained, secured, and removed as alien enemies.” The law does not allow the deportation of anyone 13 years old or younger or naturalized U.S. citizens. Beyond that, however, it is exceptionally broad and direct.
Among various other drug-related crimes, Trump said in his executive order, “TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.” Those offenses, he said, justified invoking the Alien Enemies Act.
Among legal scholars, the general consensus is that the Alien and Sedition Acts were unconstitutional. Justice Joseph Story’s influential Commentaries described the laws as ones whose “constitutionality has been denied” even though they “left no permanent traces in the constitutional jurisprudence of the country” because the Supreme Court did not get an opportunity to consider them. The Virginia and Kentucky legislatures adopted resolutions drafted, respectively, by James Madison and Thomas Jefferson, to denounce the laws as unconstitutional and call for their nullification.
That may pose a problem for Trump on appeal. America’s diplomatic relationship with the Venezuelan government is hardly a warm one. But the United States of America is not at war with the Bolivarian Republic of Venezuela. Neither the Venezuelan government nor the U.S. Congress has formally declared war on one another. Nor is there an “invasion or predatory incursion” by Venezuelan armed forces currently underway or otherwise imminent. Venezuelan troops are not on American soil or deployed near the U.S. border.
At the same time, Trump offered no actual evidence that TdA is waging any sort of military or clandestine campaign against the U.S. itself at Maduro’s behest. Invoking the Alien Enemies Act to address such a problem would also be an ill-fitting solution. Roughly 334,000 Venezuelans lived in the U.S., as of last September, via Temporary Protected Status. As its name suggests, TPS allows the U.S. government to grant temporary legal status to people from war-torn countries who can’t safely return home. Thousands more Venezuelans reside in the U.S. right now on lawful visas. The idea that all or even most of them are part of a foreign invasion or a transnational criminal organization is nonsensical.
It would not surprise me if many, if not most, of the Venezuelan nationals sent to El Salvador were genuine TdA members. The question is whether they have been given an opportunity to defend themselves from that allegation. The Trump administration has not had to prove, either before an immigration judge or a regular federal judge, that any of the people it has deported are actual members of TdA. For that reason, the order’s sweeping nature raises serious due-process concerns under the Fifth Amendment.
Even the backlash to these deportation flights was anticipated: Axios quoted unnamed White House officials who seemed to welcome the optics of Democratic lawmakers, federal judges, and media outlets criticizing them for deporting what they described as hardened gang members. The goal, as always, is not to govern competently or govern efficiently, but to govern in whatever way looks best on Fox News each night. Compliance with a federal court order is meaningless next to that higher principle.
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