(WASHINGTON) — Nearly three weeks after President Donald Trump invoked the Alien Enemies Act to remove more than 200 alleged migrant gang members to El Salvador with little-to-no due process, a federal judge on Thursday is set to consider whether the Trump administration defied a court order by deporting the men.
U.S. District Judge James Boasberg will consider what consequences the Trump administration should face if he deems that it willfully violated his March 15 orders that barred removals under the Alien Enemies Act and directed two flights carrying alleged Venezuelan gang members be returned to the United States.
Thursday’s hearing could present the most consequential face-off yet between the executive and judicial branches of government since Trump took office in January, as Trump attempts to unilaterally implement parts of his agenda amid a flood of litigation.
“I’m just doing what the VOTERS wanted me to do,” Trump said in a social media post last month after Judge Boasberg issued his order blocking the deportations.
Trump last month invoked the Alien Enemies Act — a wartime authority used to deport noncitizens with little-to-no due process — by arguing that the Venezuelan gang Tren de Aragua is a “hybrid criminal state” that is invading the United States.
An official with the U.S. Immigration and Customs Enforcement has acknowledged that “many” of the men lack criminal records in the United States — but said that “the lack of specific information about each individual actually highlights the risk they pose” and “demonstrates that they are terrorists with regard to whom we lack a complete profile.”
Lawyers representing the class of migrants covered by the president’s Alien Enemies Act proclamation have argued that the Trump administration violated the court’s “unequivocal oral order” to return to the U.S. two flights carrying alleged Tren de Aragua gang members to El Salvador.
According to flight data reviewed by ABC News, both flights carrying the migrants had not yet landed when Judge Boasberg directed the flights be turned around, and Justice Department lawyers, when questioned by Judge Boasberg, confirmed that the directive was promptly communicated to federal officials overseeing the flights.
“Defendants admit they never attempted to return the individuals on the planes to the United States, despite having both notice and the ability to do so,” the attorneys argued.
Lawyers with the Department of Justice have insisted that the Trump administration “complied with the law” while questioning the legitimacy of Judge Boasberg’s order. According to the DOJ, Judge Boasberg’s oral instructions directing the flight to be returned were defective, and his subsequent written order lacked the necessary explanation to be enforced.
Lawyers with the ACLU and Democracy Forward Foundation responded that “The government’s arguments are also unsupportable on their own terms — as a matter of basic textual analysis, of common sense, and in view of foundational separation-of-powers principles.”
The Justice Department has also argued that the president acted within his authority when he removed the noncitizens — which the Trump administration has alleged are dangerous gang members — and that the government should not have to explain itself to the court because the matter concerns national security.
“Even without the challenged Proclamation, the President doubtlessly acts within his constitutional prerogative by declining to transport foreign terrorists into the country,” the Justice Department argued.
The Justice Department recently invoked the rarely-used state secrets privilege to avoid disclosing further details about the flights on the grounds that it could harm national security, so it’s unclear how DOJ attorneys will respond to Boasberg’s lines of inquiry.
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