A federal appeals court in a 2-1 decision Wednesday refused to lift U.S. District Judge James Boasberg’s order blocking the Trump administration from swiftly deporting migrants under the Alien Enemies Act.
The Justice Department had urged the three-judge panel on the U.S. Circuit Court of Appeals to immediately block Boasberg’s order, casting it as an intrusion on the president’s executive authority over national security.
The case has attracted significant attention after the administration leveraged the rarely used law to quickly deport hundreds of migrants officials claim are Venezuelan gang members to a notorious El Salvador prison.
The Alien Enemies Act can only be invoked amid a declared war or an “invasion” by a foreign nation. The law has been leveraged just three previous times, all during wars, but Trump contends he can use it because the Venezuelan gang Tren de Aragua is effectively invading the United States.
“The theme that rings true is that an invasion is a military affair, not one of migration,” U.S. Circuit Judge Karen Henderson, an appointee of President George H.W. Bush, pushed back in her solo opinion.
Henderson joined U.S. Circuit Judge Patricia Millett, an appointee of former President Obama, to form a majority against the administration, but Millett did so believing the court had no jurisdiction over the case given the temporary nature of Boasberg’s order.
Both stressed the preliminary nature of the case and noted that Boasberg is set to soon rule on whether to grant a longer injunction.
Both stressed the preliminary nature of the case and that Boasberg is set to soon rule on whether to grant a longer injunction.
“The government will have ample opportunity to prove its case and its evidence should be afforded the requisite deference due the President’s national security judgments,” Henderson wrote.
U.S. Circuit Judge Justin Walker, who was appointed by Trump during his first term, dissented, saying the migrants needed to challenge their detention in Texas, where they were detained before being flown out of the country, through what is known as a habeas petition.
“And whatever public interest exists for the Plaintiffs to have their day in court, they can have that day in court where the rules of habeas require them to bring their suit — in Texas,” Walker wrote.
The Trump administration could now seek emergency review from the Supreme Court, but the case is meanwhile progressing in Boasberg’s court.
Boasberg, an Obama-appointed judge, has vowed to “get to the bottom” of whether several deportation flights that left the country on Saturday, March 15 violated his order that day blocking the swift deportations and demanding any airborne flights turn around.
The administration has insisted it did not violate the judge’s written order but has refused to hand over additional details about the flights by invoking the state secrets privilege. The plaintiffs are due to respond by Monday to the privilege assertion.
Skye Perryman, the president of Democracy Forward, a left-leaning organization representing the plaintiffs alongside the American Civil Liberties Union, called Wednesday’s ruling an “important step.”
“President Trump is bound by the laws of this nation, and those laws do not permit him to use wartime powers when the United States is not at war and has not been invaded to remove individuals from the country with no process at all. Despite the President and administration’s continued attacks on the rule of law, and the judges and lawyers sworn to protect it, and their careless disregard for court orders, it is undeniable that the legal system in this country is doing its job to protect peoples’ rights,” Perryman said in a statement.
Updated 4:47 p.m.
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