A federal appellate court declined to issue a stay on a lower court’s orders in a suit challenging the Trump administration‘s authority to deport Venezuelan nationals via a 1798 wartime law.
In a 2-1 decision Wednesday, a three-judge panel sided with the plaintiffs in the suit, further blocking the Trump administration’s ability to move forward with its deportation agenda.
Judges Karen Henderson, Patricia Millett, and Justin Walker of the D.C. Circuit Court of Appeals presided over Monday’s oral arguments, which they agreed to hear last week on an expedited basis.
The back-and-forth Monday was dominated primarily by Millett, an Obama appointee, who seemed to be clearly on the plaintiffs’ side. She sparred with Justice Department lawyer Drew Ensign over the Trump administration’s implementation of the law in question, and whether the administration violated constitutional due process protections in possibly failing to allow individuals targeted for deportation enough time to seek habeas protections.
In a concurring opinion of the ruling, Henderson, a Bush appointee, said: “At this early stage, the government has yet to show a likelihood of success on the merits. The equities favor the plaintiffs. And the district court entered the TROs for a quintessentially valid purpose: to protect its remedial authority long enough to consider the parties’ arguments.
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“Accordingly, and for the foregoing reasons, the request to stay the district court’s TROs should be denied.”
Their decision could ultimately be kicked to the Supreme Court for further review.
Attorney General Pam Bondi sharply criticized lower court judges for involving themselves in immigration issues, vowing in an interview on Fox News’ “Sunday Morning Futures” to appeal the case to the Supreme Court for review if necessary.
“This is an out-of-control judge, a federal judge, trying to control our entire foreign policy, and he cannot do it,” Bondi said of the lower court decisions.
At issue was the Trump administration’s authority to invoke the Alien Enemies Act, a 1798 wartime law, to immediately deport Venezuelan nationals, including alleged members of the Tren de Aragua (TdA) gang, from U.S. soil.
U.S. District Judge James Boasberg issued a temporary restraining order last weekend blocking the Trump administration from using the Alien Enemies Act to deport Venezuelan nationals, citing the need to better consider the merits of the case — and prompting the administration to file an emergency request for the U.S. appeals court to intervene.
Boasberg also issued a bench ruling ordering the Trump administration to return any planes to the U.S. that were carrying Venezuelan nationals or any other migrants subject to deportations under the Alien Enemies Act.
Despite his order, planes carrying hundreds of U.S. migrants, including Venezuelan nationals removed under the law, arrived in El Salvador hours later.
The Trump administration had filed an emergency appeal of Boasberg’s order that same day, describing his restraining order as a “massive, unauthorized imposition on the Executive’s authority to remove dangerous aliens who pose threats to the American people” in its initial filing.
During Monday’s hearing, Justice Department lawyers were pressed by the appellate judges over the timing of the deportations, and whether the individuals deported under the law had any time to seek relief or challenge their status as a TdA member in the form of a habeas petition before they were sent to El Salvador.
Millett told Justice Department attorney Drew Ensign that it appeared that there was not much time between Trump’s signing of a proclamation that authorized the use of the Alien Enemies Act to immediately deport Venezuelan nationals believed to be members of TdA and its first wave of deportation flights to El Salvador.
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If the Trump administration’s argument is that the restraining order handed down by a lower court judge last week is “an intrusion on the president’s war powers, and [that] the courts are paralyzed to do anything, then that’s a misreading of precedent,” Millett said.
“And it’s a misreading of the text of the Alien Enemies Act. The president has to comply with the Constitution and laws like everybody else,” she added.
Boasberg had ordered the Trump administration last week to submit more information to the court about its deportation flights as part of a fact-finding hearing to determine whether they knowingly defied his court order that blocked the deportations.
The Justice Department repeatedly declined to do so, even after he offered the opportunity for them to do so under seal, prompting a scathing response from Boasberg last week.
In a reply brief filed to the D.C. Circuit Court of Appeals, lawyers for the Trump administration argued that the district court is “continuing to attempt to pry sensitive information from the Government,” describing the requests from Boasberg as “intrusive inquiries” and ones they said “could hamper negotiations in the future.”
Boasberg wrote that the government had submitted a six-paragraph declaration from a regional ICE office director in Harlingen, Texas, which notified the court that Cabinet secretaries are “actively considering whether to invoke the state secrets [act] privileges over the other facts requested by the Court’s order.”
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In a separate district court hearing, Boasberg pressed the government’s attorneys, at one point questioning them on their credibility.
“So, your clients had you come argue this but kept you in the dark about it,” Boasberg said. “I often tell my clerks before they go out to practice law, that the most valuable thing they have is their reputation and their credibility. I would ask that your team retain that lesson.”
“The government isn’t being forthcoming… but I will get to the bottom of if they complied with my order and who violated the order, and what the consequences are,” Boasberg said during the hearing.
