A federal judge chastised a Justice Department attorney Friday, expressing doubt about the legality of the Trump administration’s use of the Alien Enemies Act.
U.S. District Judge James Boasberg has sparred all week with the Trump administration over whether last weekend’s deportation flights deliberately ignored his orders to turn around airborne planes. Trump himself has repeatedly attacked the judge, going as far to call for his impeachment.
“The government’s not being terribly cooperative at this point, but I will get to the bottom of whether they violated my order, who ordered this and what the consequences will be,” Boasberg said Friday..
The Justice Department for days has resisted Boasberg’s demands for more information about the flights, citing national security concerns and accusing him of encroaching on the executive branch’s authority.
Entering the 75-minute hearing Friday, Boasberg appeared frustrated, telling Deputy Assistant Attorney General Drew Ensign at the onset that the recent filings included “intemperate, disrespectful language” he couldn’t recall ever seeing before from the federal government.
Boasberg, an appointee of former President Obama, repeatedly grilled Ensign about whether the administration had kept him in the dark about the flights.
“We had a conversation on Saturday in which I treated all parties with respect and politeness and made that clear without raising my voice, without having any edge, I made it very clear what you had to do. Did you not understand my statement in that hearing?” said Boasberg.
Ensign insisted that he didn’t know about the flights at last weekend’s hearing and that the administration had not violated the judge’s order.
“Your Honor, I understood your statements and your directive to relay your directives to my clients, which I have done,” Ensign said.
The bulk of the hearing was dedicated to the legal issues of Trump’s proclamation igniting the act to expel Venezuelans from the country and carry them to a Salvadoran prison. At one point, Boasberg expressed concern over how swiftly the administration deported the migrants after Trump invoked the rarely used wartime statute.
“Why was this proclamation essentially signed in the dark on Friday night or early Saturday morning, and then these people rushed onto planes? It seems to me the only reason to do that is you know it’s a problem and you want to get them out of the country before a suit is filed,” the judge told the government.
Lee Gelernt, an attorney for the American Civil Liberties Union (ACLU), warned of a number of issues with the use of the Alien Enemies Act, including that it would create a pathway for the government to deport people with little review based solely on alleged gang affiliation.
Gelernt said the government should have to hold hearings, noting that several countries have gangs associated with that nationality, opening the door for the government to use that affiliation to deport people.
“Anyone could just be removed off the streets,” he said, adding later “This is a very dangerous road we’re going down.”
At one point he noted the lack of case law on “incursion and invasion” – two words Trump used to describe flows of Venezuelans into the U.S. and among the justification Trump gave for igniting the Alien Enemies Act.
“You’re so far afield from what Congress intended,” Gelernt said.
He noted that the Trump administration could use existing immigration laws to deport anyone it believes is not lawfully in the country or might present a danger to U.S. citizens.
At one point later in the hearing, Ensign said the government was not prepared to hold individual hearings for those who may be removed under the act where they would have to prove a gang affiliation.
