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WASHINGTON (CN) — President Donald Trump asked the Supreme Court Friday to release the administration from a restraining order grounding flights deporting migrants under the Alien Enemies Act.
In an emergency appeal, the Justice Department said deporting migrants to a megaprison in El Salvador was essential to protect national security and maintain foreign relationships.
“The district court’s orders have rebuffed the president’s judgments as to how to protect the nation against foreign terrorist organizations and risk debilitating effects for delicate foreign negotiations,” the federal government wrote.
The administration has been prohibited from carrying out deportations under the 1798 law after sending 137 Venezuelan migrants to the infamous prison in El Salvador over their supposed ties to the Tren de Aragua gang. Civil rights groups representing the migrants say those claims are unfounded and based on unrelated tattoos.
Trump pushed the justices to lift a temporary restraining order issued by U.S. District Judge James Boasberg, who was appointed to D.C. Superior Court by George W. Bush before Barack Obama elevated him to the federal bench in 2012.
Boasberg exceeded his authority, Trump claimed, because the Alien Enemies Act gives presidents broad authority to summarily detain and remove any “invasion” from a foreign nation. According to the administration, Tren de Aragua is a de facto arm of the Venezuelan President Nicolás Maduro’s regime; they say Maduro coordinates and relies on the gang to harm U.S. citizens and destabilize democratic nations. ** **
The wartime authority allows the president to detain or deport the natives and citizens of an enemy nation. It has only been used three times in the nation’s history: during the War of 1812, World War I and World War II. President Franklin Roosevelt infamously ordered the internment of Japanese Americans under the statute.
That authority, Trump argued, is unreviewable by federal courts because it falls under the president’s Article II constitutional powers.
“Drawing from the established English rule that ‘alien-enemies have no rights, no privileges, unless by the king’s special favour, during the time of war,’ the act confers on the president the power to determine which alien enemies are subject to removal,” the government wrote. “The ‘very nature’ of that sweeping authority ‘rejects the notion that courts may pass judgment upon the exercise of [the president’s] discretion.’”
Earlier this month, Trump invoked the power privately, only announcing his order after the American Civil Liberties Union sued to prevent the imminent deportation of five migrants. The president claimed in the order that Tren de Aragua — designed a foreign terrorist organization by former President Joe Biden — had invaded the U.S., necessitating quick government action to deal with sensitive diplomatic and national security operations.
Boasberg agreed to an emergency weekend hearing and ordered the Justice Department to “turn around and return to the United States” any flights deporting the migrants.
The flights never returned to the U.S. Publicly available flight data indicated that two of the flights took off from Texas in the middle of the emergency hearing.
The incident sparked concerns that the administration was sending the country into a constitutional crisis by violating judicial orders, making the case a flashpoint in over 100 lawsuits against the administration in just the first few months of Trump’s second term.
Justice Department lawyers cited technicalities between Boasberg’s oral and written rulings to excuse the refusal to turn the planes around. The White House said Boasberg’s ruling didn’t take effect until his written order was issued, and by that time, the flights were over international waters and out of the court’s jurisdiction — an argument contested by many legal experts.
The president and his supporters have relentlessly attacked Boasberg, claiming he was a radical lunatic, troublemaker and agitator whose animus against Trump guided his ruling. Trump called for Boasberg’s impeachment earlier this month, earning a rare rebuke from Chief Justice John Roberts, also a Bush appointee.
A divided panel on the D.C. Circuit upheld Boasberg’s ruling. U.S. Circuit Judge Patricia Millett, an Obama appointee, expressed concerns that approximately 300 similarly situated people would be “lined up and packed on planes without notice.”
“Nazis got better treatment under the Alien Enemies Act,” Millett said, because “they had hearing boards before people were removed.”
The Supreme Court typically doesn’t review temporary restraining orders because of their short duration, but Trump said the justices needed to step in here because such national security questions are quintessential issues under the court’s review.
“This case raises paramount questions about the president’s constitutional and statutory authority to protect the nation against elements of a designated foreign terrorist organization that the president has determined has been ‘conducting irregular warfare and undertaking hostile actions against the United States,’ as well as the extent of judicial review of decisions to remove those individuals,” the government wrote.
Trump argued that the restraining order should be terminated because the migrants asked the courts for legal relief that wasn’t available to them. The ACLU brought an Administrative Procedure Act claim — which allows individuals to challenge actions by federal agencies — against Trump’s use of the Alien Enemies Act. However, the Justice Department said that habeas claims challenging detention are the only viable avenue available to the migrants.
Instead of contesting Trump’s discretion under the Alien Enemies Act, the Justice Department said migrants could only use habeas claims to review whether the detainee is illegally in the country or whether they belong to a terrorist group.
The D.C. Circuit wouldn’t have jurisdiction over the migrants’ habeas claims, however. Trump accused the ACLU of leveraging the Administrative Procedure Act to file in a friendly forum instead of filing habeas claims in the Southern District of Texas.
The court ordered the migrants to respond to the application by April 1. ** **
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