Trump asks Supreme Court to overturn judge blocking deportations under Alien Enemies Act
WASHINGTON – The Justice Department on Friday asked the Supreme Court to overturn a judge's temporary block on President Donald Trump's speedy deportation of certain immigrants without a hearing.
Acting Solicitor General Sarah Harris wrote that the case provides a clear choice between whether the president or the judiciary will set policy for sensitive national security cases.
“The Constitution supplies a clear answer: the President,” Harris wrote. “The republic cannot afford a different choice.”
Skye Perryman, president of Democracy Forward Foundation − one of the groups challenging the deportations − said the Justice Department is searching for a court that will rubber stamp Trump's "flagrant violation of the law."
Trump wants to use the Alien Enemies Act, a 1798 law that gives presidents “near-blanket authority” to detain and deport any noncitizen from a country at war with the U.S.
The administration says it’s deporting members of Venezuelan crime gang Tren de Aragua, also known as TdA. But an appeals court said the invasion had to come from a foreign government rather than a gang.
And Chief U.S. District Judge James Boasberg, who initially paused the flights, ruled that alleged members of TdA deserve a hearing at which they'd have a chance to deny they belonged to the gang. He has also asked for details about two flights on March 15 to determine whether the administration defied his oral and written orders to block them.
But lawyers led by Attorney General Pam Bondi argued that Trump had the authority to declare the gang a foreign terrorist organization and deport accused members without holding hearings. Government lawyers refused to release information about the flights to the court, arguing it would tip people off about how the administration is carrying out the deportations.
“Once that secondary disclosure occurred, any opportunity for appellate review would be moot; the damage would be done, and the effect on United States foreign policy could be catastrophic,” the lawyers wrote.
In addition to asking the Supreme Court to overturn Boasberg's order pausing the flights, the administration also asked the justices to put the order on hold while considering that request.
“Those orders – which are likely to extend additional weeks – now jeopardize sensitive diplomatic negotiations and delicate national-security operations, which were designed to extirpate TdA’s presence in our country before it gains a greater foothold,” Harris wrote.
The Supreme Court asked lawyers for some of the deported Venezuelans to respond to the administration's request by 10 a.m. on Tuesday.
“We will urge the Supreme Court to preserve the status quo to give the courts time to hear this case, so that more individuals are not sent off to a notorious foreign prison without any process, based on an unprecedented and unlawful use of a wartime authority,” said Lee Gelernt, a lawyer for the American Civil Liberties Union who is representing the Venezuelans, said in a statement.
The case tests Trump's authority over mass deportations
Government lawyers have insisted the government obeyed the judge’s written order blocking the flights but that a previous oral order while two flights were in the air wasn’t enforceable. The lawyers contend that Trump had the authority to conduct the flights as the commander-in-chief of the military and the country's head of foreign affairs.
The case has become a legal test for Trump's goal of mass deportations of migrants in the U.S. without legal authorization
Trump has called for the impeachment of Boasberg, saying the lifetime jurist appointed by former President Barack Obama is “a troublemaker and agitator" for thwarting the fight against illegal immigration.
That elicited a rare rebuke from Chief Justice John Roberts.
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in a public statement. “The normal appellate review process exists for that purpose.”
What is the Alien Enemies Act?
The 1798 Alien Enemies Act Trump is relying on was previously only invoked in times of declared war against other countries. The act allows the deportation of anyone from a designated enemy country who is not a naturalized citizen.
The administration argues that members of Tren de Aragua have invaded the U.S. and are a national security threat.
But Boasberg, an appointee of former President Barack Obama, temporarily blocked the flights.
He wrote that "despite the President’s determination otherwise, Tren de Aragua is not a 'foreign nation or government,' and its actions, however heinous, do not amount to an 'invasion' or a 'predatory incursion.'"
The D.C. Circuit Court of Appeals upheld Boasberg's pause on deportation flights.