The Legal Battle Over Deportation
A lengthy courtroom showdown Monday offered few clear answers on whether the courts will allow President Donald Trump to resume his effort to swiftly deport Venezuelan nationals using a rarely invoked wartime power.
One judge on a three-member appeals court panel grilled a Justice Department lawyer on the administration’s handling of the deportations. A second judge seemed more sympathetic to the administration. But the panel’s third judge remained almost entirely silent during two hours of oral arguments, leaving the fate of the administration’s appeal unclear.
Judge’s Concerns and Analogy
The panel’s sole Democratic appointee, Judge Patricia Millett, voiced grave concern about how the administration whisked more than 200 people out of the country on March 15, mere hours after Trump invoked the 18th century Alien Enemies Act against members of the Venezuelan gang Tren de Aragua.
“There were planeloads of people. There were no procedures in place to notify people. Nazis got better treatment under the Alien Enemy Act than has happened here,” said Millett, an appointee of President Barack Obama.
Legal Rights and Deportations
Justice Department lawyer Drew Ensign said he disputed the Nazi analogy. Under Millett’s questioning, he conceded that detainees being deported under the law have a constitutional right to contest their deportations in court. But he refused to guarantee that the government would provide enough notice to the detainees — or their lawyers — for them to have a practical opportunity to seek relief in court before being flown out of the country.
Millett expressed frustration at that apparent Catch-22.
Challenges Faced by Detainees
Lawyers for the Venezuelan detainees have argued that many of the people being accused by the government of being affiliated with Tren de Aragua are not gang members at all — and in some instances were trying to flee that very gang.
For now, any further deportations under the Alien Enemies Act are blocked by a restraining order issued by U.S. District Judge James Boasberg.
Court of Appeals and Presidential Powers
The Trump administration has asked the D.C. Circuit Court of Appeals to lift Boasberg’s order, and the case was assigned to the three-judge panel that heard Monday’s arguments.
While Millett seemed all but certain to uphold Boasberg’s order, Judge Justin Walker, a Trump appointee, was friendlier to the administration’s position. Walker said the president has broad latitude to manage foreign relations, especially when invoking wartime powers, and he suggested that Boasberg may have gone too far when, during an emergency hearing on March 15, he ordered that planes carrying deportees be turned around.
The Role of the Judiciary
The outcome of the Trump administration’s appeal could come down to the third member of the panel: Judge Karen Henderson, an appointee of President George H.W. Bush. Henderson asked no questions during the hearing and said nothing substantive about the case.
There was no discussion during the hearing about the Trump administration’s unusual request to the appeals court that it throw Boasberg off the case while the litigation continues in the lower court. Even when Walker suggested that Boasberg’s order may have unconstitutionally interfered with the president’s foreign policy and national security powers, Walker was careful to note that Boasberg was handling the case on a quick timeline and without the benefit of full legal briefing.
