Trump clash with courts on Venezuela flights cues concerns of constitutional crisis
The Trump administration’s removal of more than 130 Venezuelans amid a court battle to block their deportation has ignited alarm it may have violated a court order barring its use of the Alien Enemies Act.
President Trump on Saturday signed an order igniting the 1798 law and invoking war powers to remove any Venezuelan national believed to be a member of the Tren de Aragua gang.
Hours later, U.S. District Judge James Boasberg ordered flights carrying the Venezuelans to a Salvadoran prison to turn around — a directive he gave verbally in a court hearing as well as in a written order after it closed.
Nonetheless, the administration continued with two flights — sparking questions from the American Civil Liberties Union (ACLU) that said despite some disagreement over the timing of the flights the Venezuelans had not yet been released from American custody at the time Boasberg’s order was issued, and therefore should have been returned to the country.
After a Monday full of White House aides blasting Boasberg and diminishing his authority, a Justice Department lawyer refused to answer questions about the flights, a remarkable confrontation in which the attorney asserted that the administration complied with the judge’s written order but declined to provide any evidence.
“The Trump talking point about this has been no court order was violated because the judge has no jurisdiction to tell the president what to do when it comes to matters under his commander in chief powers. It's just not true. The court has the power to interpret the law, and so this violation of a court order, I think, is very alarming to people,” said Barbara McQuade, a former U.S. attorney who now teaches law at the University of Michigan.
“A president [who] feels free to violate court orders is a very dangerous precedent. We have three separate and co-equal branches of government to avoid one of those branches from abusing its power. And if President Trump thinks he can do everything without judicial review, then we are in a constitutional crisis.”
Boasberg issued an oral order to turn the planes around Saturday at approximately 6:45 p.m. EDT. Those instructions were also posted to the court’s docket at 7:26 p.m. EDT.
The ACLU included flight information it received from the government, indicating the planes did not land in Honduras until 7:36 p.m. EDT and 8:02 p.m. EDT. The group suggested the planes later took off again before ultimately landing in El Salvador, arriving hours after each of Boasberg’s orders.
Voices across the Trump administration Monday were dismissive of Boasberg’s handling of the case or his authority to do so, despite judges routinely weighing the legality of immigration policies and executive powers.
Border czar Tom Homan during an appearance on Fox News said, “We’re not stopping. I don’t care what the judges think.”
Stephen Miller, a senior adviser to the president, called Boasberg’s order “without doubt the most unlawful order a judge has issued in our lifetimes. A district court judge has no authority to direct the national security operations of the executive branch.”
White House press secretary Karoline Leavitt implied there was a distinction in whether the administration had to follow Boasberg’s oral order in addition to the written one posted to the court's docket. There is not is a distinction — all orders from a judge are binding, regardless of whether they are spoken or written.
And Attorney General Pam Bondi accused Boasberg of supporting "Tren de Aragua terrorists over the safety of Americans,” while the White House social platform X account showed videos of the deportation to the song “Closing Time” by Semisonic, saying migrants “don’ have to go home but you can’t stay here.”
The Alien Enemies Act allows the government to detain or deport a citizen of any country it deems to be an enemy nation. The removals do not require a hearing, sparking concern the administration could use gang activity as a pretext for deporting Venezuelans without ties to Tren de Aragua.
Migrants who preemptively sued over the order said they are not members of the gang, but immigration advocates have broader concerns over the use of a war power for immigration purposes.
The law has been invoked only three times, most recently as the basis for Japanese internment during World War II.
"This is a time of war,” Trump said Sunday night on Air Force One. “Because Biden allowed millions of people … that’s an invasion. And these are criminals. Many, many criminals.”
In comments to reporters at the White House, Homan argued the president was within his authority. He argued Tren de Aragua had been designated a foreign terrorist organization, giving Trump greater powers to act. However, he simultaneously asserted many of those on the planes under scrutiny over the weekend were removed through Title 8, not the Alien Enemies Act, indicating an additional 101 Venezuelans on the flights were not deemed to have gang ties.
“We removed terrorists from the country this weekend,” Homan added. “I can't believe any media would question the president's ability to remove terrorists from this country.”
And Leavitt, like Miller, said “federal courts generally have no jurisdiction over the President’s conduct of foreign affairs, his authorities under the Alien Enemies Act, and his core Article II powers to remove foreign alien terrorists from U.S. soil and repel a declared invasion. A single judge in a single city cannot direct the movements of an aircraft carrying foreign alien terrorists who were physically expelled from U.S. soil.”
Just hours before Monday’s hearing, the Justice Department moved to change the judge overseeing the case, citing the “highly unusual and improper procedures” employed by Boasberg.
Katherine Ebright, an expert in the Alien Enemies Act and attorney with the Brennan Center for Justice, said courts have routinely reviewed such matters, including each time the law has been used.
“Courts have historically played a role. They certainly have a role in policing clear violations of the law, notwithstanding whatever the president may say about the scope of this Article II powers,” she said, noting that it is the president who is supposed to faithfully execute the laws passed by Congress.
“What we're seeing is a president who is arbitrarily calling migration and narcotics trafficking acts of war and an invasion and predatory incursion without any actual basis or factual basis for doing so. And so it is certainly the province of the court to say this abuse must stop,” Ebright added.
Boasberg expressed shock during the meeting that the Justice Department (DOJ) was refusing to answer questions about the flights, with Deputy Associate Attorney General Abhishek Kambli repeatedly saying he was “not authorized” to do so.
“Wouldn’t it have been a better course to return the planes around the United States as opposed to going forward and saying, ‘we don’t care, we’ll do what we want?’” Boasberg asked later in the hearing.
Boasberg directed the DOJ to offer up a rationale for failing to share the flight information, saying he would do so in a written order “since apparently my oral orders don’t carry much weight.”
Ebright noted a pattern of the Trump administration dancing around whether to comply with court orders, including in cases challenging the block on federal grants.
But beyond the sparring with the judiciary, she stressed the impact on those deported.
“I think it is a travesty,” she said.
“It is devastating for the 250 men who have been sent into Salvadorian prisons, which are notorious for torture.”
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