Trump Administration Likely Violated Court Order in Alien Enemies Act Case

While things are not completely clear, evidence increasingly indicates that the Trump Administration violated a court order in the Alien Enemies Act case currently before a federal district court in Washington, DC. Adam Isaacson and Georgetown law Prof. Marty Lederman have detailed analyses of the relevant evidence and legal issues. But the bottom line is that, on Saturday March 15, US District Judge James Boasberg issued a temporary restraining order barring the administration from using the AEA to deport migrants for 14 days, and specifically indicating that they must turn around planes that might be in the air conducting such deportations. The administration nonetheless decided not to turn around two planes then in the air, and one more that was about to take off.

These three planes delivered a total of 137 Venezuelan migrants deported under the AEA to El Salvador, where they are going to be imprisoned for at least one year doing hard labor in that country’s notoriously awful prison system. And, while the administration claims these men are members of the Tren de Aragua drug gang, none of them has actually been convicted of any crime or even been given an opportunity to defend themselves against the accusation that they are members of the gang.

Administration lawyers have claimed the judge’s order wasn’t binding with respect to the men on these planes because the planes were over international waters. This argument is risibly weak. For the explanation why, see this analysis by Notre Dame law Prof. Sam Bray, a leading expert on these kinds of jurisdictional issues.

I would add that, if courts accept the argument that the administration can do whatever it wants to people on aircraft over international waters, without any judicial scrutiny, that would have dire implications for civil liberties. The government could then put anyone it chooses to target – including US citizens –  on a plane or helicopter, fly them over international waters before they have an opportunity to go to court, and then kill, injure, or torture at will. This theory, if taken seriously, would license abuses like the notorious “death flights” used by the 1976-83 Argentinian military dictatorship, which threw dissidents to their deaths from aircraft flying over the Atlantic.

Even if the TRO was indeed legally defective, the proper remedy was not to ignore it, but to obey and challenge it in court on appeal.

A second argument advanced by the administration is that the TRO didn’t apply to the deportees on the planes because the Judge only said planes must be turned around in an oral statement, not in his written order. As I understand, such oral orders are still legally binding. But I admit I am not an expert on the relevant protocol, and I welcome correction by experts with greater relevant knowledge.

While things here are not completely clear, it appears likely we have reached the point where the administration is indeed deliberately defying a judicial order. If they manage to get away it, there are likely to be dire consequences, some of which I described here.

Judge Boasberg held an additional hearing on these matters earlier tonight, and clearly wasn’t satisfied with administration lawyers’ answers to his questions about the apparent defiance of his TRO, and demanded written answers on several issues to be submitted by tomorrow.

In addition the immensely important issue of apparent defiance of a court order, this case also features important substantive issues. If the administration is able to use the AEA as a tool for peacetime deportation, it would set a very dangerous precedent. I covered the relevant issues in detail in previous writings here, here, and here.

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