An appellate judge told prosecutors Monday that “Nazis got better treatment under the Alien Enemy Act” than the Venezuelan nationals the Trump administration recently removed from the U.S. to a prison in El Salvador.
Judge Patricia Millett drew the stark comparison during a hearing at the Court of Appeals for the D.C. Circuit, where lawyers representing the Trump administration worked to lift a lower court’s temporary ban on the deportation of immigrants under a proclamation President Donald Trump recently issued that invoked the Alien Enemies Act.
The centuries-old law has only been used four times in American history and gives the president broad powers to deport non-U.S. citizens from “enemy” nations, or those deemed to be committing an invasion or incursion against the U.S. The law is a powerful dragnet since it allows a targeted person to be deported without a single hearing before a judge or in immigration court.
“Nazis got better treatment under the Alien Enemy Act than what has happened here… they had hearing boards before people were removed,” Millett said. “Here, there’s nothing about hearing boards or regulations and nothing was adopted by agency officials who were administering this. People weren’t given notice [and] weren’t told where they were going.”
“We certainly dispute that analogy,” federal prosecutor Drew Ensign replied.
Trump’s proclamation on March 15 declared the Venezuelan gang Tren De Aragua to be an “invading force.” What followed was the swift removal of at least 200 people from the U.S. whom the administration flagged as members of the gang. Justice Department lawyers conceded in court that the exact number of people the government has identified as members of the gang is unclear.
American Civil Liberties Union attorney Lee Gelernt, who is representing the plaintiffs, said “many, if not all” of those removed have no ties to Tren De Aragua. In some instances, tattoos on those removed have been misinterpreted by the government as symbols of gang membership.
The hearing came just hours after U.S. District Judge James Boasberg refused to lift his temporary restraining order barring the administration’s implementation of the Alien Enemies Act.
None of those who have been deported are arguing that the president lacks the authority to remove them or that he does not have the authority to use his powers in times of war or invasion.
Rather, as Boasberg noted in his opinion Monday — and Millett echoed from the bench just hours later — the question before the courts is whether the administration is allowing people it chooses to deport to have any due process, for example in the form of individualized hearings.
This would at least give them a chance to declare that they are not members of the gang, Millett said.
“If the government says, ‘We don’t have to give due process for that,’ you could have put me up on a plane on Saturday and called me a member of Tren De Aragua… [with] no chance to protest it… and now you say it’s somehow a violation of presidential war powers to say, ‘Excuse me, no I’m not [a member of Tren De Aragua], I’d like a hearing,’” Millett said.
During a rare Saturday session in the district court on March 15, Boasberg ordered the Justice Department to make sure that any flights carrying passengers flagged for removal be turned around and sent back to America while the litigation played out in court. The planes did not return. Instead, up to 300 individuals marked for deportation were dropped off at a prison in El Salvador.
The Justice Department has argued that because the order was made orally, it was not binding and the judge’s order should have been in writing. Further, government lawyers claim that because the planes were outside of U.S. airspace at the time of Boasberg’s oral order, that made it impossible to follow without generating new, complicated legal issues.
Ensign steered clear of those arguments Monday but hammered away at Boasberg’s ruling: The temporary restraining order was akin to the judicial branch trying to make significant military decisions for the president, he argued.
It was as if Boasberg had told the administration where to move carrier jets.
Millett stopped Ensign cold.
Boasberg’s restraining order, which expires at the end of this month, was “straight-up judicial process that’s allowed by the Supreme Court and Circuit precedent,” she said.
Presiding alongside Millett were Judges Justin Walker and Karen Henderson.
Henderson was mostly quiet Monday, but Walker peppered attorneys for the plaintiffs with questions about whether the best possible venue was chosen. Would it have been better to challenge the removal by filing petitions in Texas?
Five of the plaintiffs represented by the ACLU were in Texas when they were removed, but ACLU attorneys emphasized that even if they filed a petition for habeas corpus in Texas, it wouldn’t cover every person the administration has hauled out of the U.S or plans to.
The plaintiffs have the right to file in the venue of their choice, Gelernt said.
“I want to make this point: The government is doing everything in secret. We have no idea if everyone is in Texas,” Gelernt said.
If the court dissolved the temporary ban on the deportations and then flights started leaving from Arizona to El Salvador, would the plaintiffs be asked to then file in every single district?
The appeals court is expected to rule soon. If they agree to keep Boasberg’s temporary restraining order in place, the matter will continue to unfold in the lower court, but Trump is almost certain to challenge it and bring the question to the Supreme Court.
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For now, however, Boasberg will continue to review evidence from the ACLU that explores whether the Trump administration overtly ignored court orders to turn the planes around.
Should the appellate court opt to overturn Boasberg’s order, it will be a major boon for Trump. In that outcome, there would be little to nothing left to stop the administration from deporting anyone it says is affiliated with the gang.