'Troublesome, problematic and concerning': Judge explores ramifications of deportations
WASHINGTON – The judge who temporarily blocked President Donald Trump’s deportation of Venezuelans under the Alien Enemies Act accused government lawyers of being “intemperate and disrespectful” in court documents and said he would continue to investigate whether the removals defied his order.
Chief U.S. District Judge James Boasberg didn’t specify which government filings he was referencing, but one called the judge's questions about how many people were deported Saturday a “micromanaged and unnecessary judicial fishing expedition.” Trump has called for his impeachment and Attorney General Pam Bondi has said he had no authority to ask the questions.
“What’s concerning to me is why was this proclamation essentially signed in the dark on Friday or Friday night or early Saturday morning and then people were rushed onto planes,” Boasberg said. “It seems to me the only reason to do that is if you know it’s a problem and you want to get them out of the country.”
Drew Ensign, a deputy assistant attorney general, said he wasn’t familiar with the operational details of the deportations.
Trump administration isn't deporting Venezuelans during court pause: lawyer
The conflict is part of a broader clash between the Trump administration and judges who have blocked parts of his government overhaul dismantling agencies and firing federal workers.
A key point for the deportations is that two flights full of hundreds of deportees were headed to El Salvador when Boasberg verbally ordered them to turn around. Government lawyers said no planes took off after his written order and that the oral order was unenforceable.
Boasberg pointedly asked Ensign whether the government’s position on Saturday was that the oral order didn’t count. Ensign said he had understood Boasberg’s order and relayed it to other officials.
“The government is complying with the law as it understands the law,” Ensign said.
The bigger question that went unresolved during the hearing was whether Venezuelans will get a chance to deny they are members of the crime gang Tren de Aragua, perhaps in a hearing.
“What happens if somebody is not a member of TdA?” Boasberg asked.
'Troublesome, problematic and concerning': judge on Alien Enemies Act
Lee Gelernt, a lawyer for the American Civil Liberties Union representing Venezuelans, said people weren’t deported during the first two invocations of the Alien Enemies Act in the War of 1812 and World War I. He said hearings were held for targeted people in the World War II invocation, but he needed more time to see if he would propose that now.
“This statute gives the president extraordinary powers,” Gelernt said. “It’s ultimately a separation of powers issue,” he added, to determine if Trump’s use of it is what Congress intended.
“Any nationality in this country has gangs and all of a sudden they could be subject to this” and wind up in a Salvadoran jail, Gelernt said.
Boasberg also said he was troubled by the possibility that a president could name any group an enemy and then deport its members without review. He asked Ensign what would happen if Trump declared Chinese fishermen enemies and began deporting them.
“The policy ramifications are incredibly troublesome, problematic and concerning,” Boasberg said. "They're out of luck, right? That's alarming."
Ensign said the Alien Enemies Act gave the president broad power. Congress could change the law if the political branches viewed it as problematic, Ensign said.
But the courts now have no meaningful standards to determine what defines an invasion, which is what Trump accused Tren de Aragua of doing, Ensign said.
“I believe that is how Congress set this up to be,” Ensign said.
Trump says Venezuelans were vetted before removal
The government asked the D.C. Circuit Court of Appeals to overturn Boasberg’s block on the deportations. An appeals hearing is scheduled for Tuesday.
Asked Friday about the possibility that non-gang members were deported, Trump said the deportees went through "a very strong vetting process."
"If there's anything like that, we would certainly want to find out," Trump told reporters. "We don't want to make that kind of mistake."