Trump's deportation push tests courts' ability to check his power
A prison guard transfers deportees from the United States, alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador, on March 16, 2025. (El Salvador presidential press office via AP)
President Donald Trump’s administration is being accused of defying the judiciary after swiftly deporting hundreds of alleged Venezuelan gang members in an assertion of sweeping power to pursue hard-line immigration policies.
Two groups suing the administration alleged in a court filing Monday that the government may have violated a federal judge’s order halting the expulsions. The White House said its deportations didn’t violate any court orders.
The legal clash, which ultimately could land at the Supreme Court, quickly emerged as a test of the ability of the judiciary to act as a check on Trump’s agenda.
A federal appeals court is now set to sort out whether Trump exceeded his presidential power by relying on a law that previously had been used only when the country was at war. Filings in the case are due Tuesday.
The drama began when five Venezuelans filed a lawsuit early Saturday morning in anticipation that Trump would invoke the Alien Enemies Act of 1798 to target alleged members of the Tren de Aragua gang. Trump had signed a presidential proclamation to put the act into effect on Friday, but didn’t release it until Saturday afternoon.
Judge’s Order
In response, U.S. District Judge James Boasberg, the chief judge in Washington, issued an order to temporarily stop the deportation of the five Venezuelans. In the afternoon, he halted use of the law to deport any alleged Tren de Aragua members. But by then planes had already taken off.
Boasberg also orally ordered the flights to turn around, according to the transcript. His comments came between between 6:45 and 6:48 p.m., the American Civil Liberties Union and Democracy Forward said in court papers filed Monday morning.
“Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” Boasberg said. “However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.”
After ordering the planes to turn around, the judge said that “if planes have already landed and discharged their occupants,” then “I don’t have jurisdiction to require their return.”
The judge’s written order, which appeared on the public docket at 7:26 p.m., made no mention of directing the planes to return to the US.
Planes Arrive
Eventually the planes did arrive in El Salvador, according to a three-minute video released by El Salvador President Nayib Bukele. The Venezuelans are now being held at a terrorism confinement center under a deal that Secretary of State Marco Rubio brokered with Bukele.
In court papers Sunday, the Trump administration said that “some gang members subject to removal under the proclamation had already been removed from United States territory” before Boasberg issued his order.
The ACLU and Democracy Forward said that phrasing suggests the government treated Boasberg’s order as applying only to people who were still on US soil or in US airspace at the time of the written order. “If that is how the government proceeded, it was a blatant violation of the court’s order,” the groups argued.
White House Press Secretary Karoline Leavitt said in a statement Sunday that the administration “did not ‘refuse to comply’ with a court order.” She said “the order, which had no lawful basis, was issued after terrorist TdA aliens had already been removed from U.S. territory.”
The United States has not publicly detailed how it identified the Venezuelans as members of the Tren de Aragua gang that’s been designated a foreign terrorist organization.
Judicial Review
The extraordinary chain of events raised fresh questions about the administration’s willingness to submit its actions to judicial review. More than 100 lawsuits have been filed in an effort to rein in Trump policies, including attempts to limit birthright citizenship and overhaul the government, the latter effort being led by Elon Musk. Some litigants have alleged that the administration has tried to skirt court orders to distribute grants, loans and other funds already approved by Congress.
Trump’s push marks an unprecedented use of the Alien Enemies Act, a measure that previously had been used only in the War of 1812, World War I and World War II. The law lets the president bypass the nation’s immigration laws to deport people when the US is involved in a declared war or a foreign nation has started or threatened an “invasion or predatory incursion.”
In his proclamation, Trump said Tren de Aragua meets the law’s criteria because it “is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.”
Trump defended his use of the wartime law in a discussion with reporters Sunday night aboard Air Force One.
“This is war,” Trump said. “In many respects, it’s more dangerous than war because, you know, in war, they have uniforms. You know who you’re shooting at.”
Justification of Deportations
Critics said the White House was misusing the authority.
The proclamation glosses over a host of reasons why the law can’t be used to justify the deportations, said Ilya Somin, a professor at George Mason University Antonin Scalia Law School.
“Mere illegal migration or drug smuggling does not qualify as an invasion,” he said. Even if it did, “it’s not being done by a foreign government.”
The administration contends that federal judges have little role to play in assessing the president’s use of the 1798 law. In its court filing Sunday, the Justice Department said courts can review individual cases but can’t “probe the national-security and foreign-policy judgments of the president in issuing the proclamation itself.”
‘Flatly Unlawful’
The administration’s use of the law is “flatly unlawful,” ACLU lawyer Lee Gelernt said in an interview.
“There is no authority for using it against a gang regardless of how dangerous the government claims the gang is,” Gelernt said. “This is a wartime authority that has no application in this context.”
President’s Authority
In its appeal on Sunday, the Justice Department said Boasberg’s order will cause “extraordinary harm to the president’s authority to declare an invasion” of the US and his authority to “repel such an invasion and conduct foreign affairs.”
The Justice Department said Sunday it “will continue to protect the United States” using other legal powers.
The Venezuelan government posted on Telegram that the US proclamation “infamously and unfairly criminalizes” Venezuelan migrants, describing it as recalling “humanity’s most dark moments.”
With assistance from Jennifer A. Dlouhy.
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