Does Separation of Powers Stop at the Water’s Edge?
An update on Trump in the courts.
“There has been a lot of talk the last couple weeks about a constitutional crisis,” Lee Gelernt, an attorney at the American Civil Liberties Union (ACLU), told a federal judge on Monday. “I think we’re getting very close to that.”
Gelernt was in court as part of an ongoing dispute over the Trump administration’s use of a 1798 law to deport alleged members of the Venezuelan gang Tren de Aragua (TdA). The case has tested the tensions between the executive and judicial branches perhaps more than any other in Trump’s second term so far.
As I detailed yesterday, Trump signed a proclamation Friday invoking the Alien Enemies Act of 1798, which allows the president to deport “natives” or “subjects” of a “hostile nation or government” that have invaded the United States. Because TdA has links to the Venezuelan government, and several hundred members of the group live in the U.S., Trump declared that the Alien Enemies Act was applicable. The ACLU filed a lawsuit challenging that determination; on Saturday, as two deportation flights carrying TdA members were in the air, Judge James Boasberg verbally ordered them to turn around at a court hearing. The flights did not turn around, ultimately landing in El Salvador hours after Boasberg ordered the administration in writing not to remove anyone from the U.S. under the 1798 authority.
In the hours leading up to Monday’s hearing — which Boasberg, an Obama-appointed district judge, described as a “fact-finding” session to ascertain whether the government had complied with his directives — the Trump administration took the unusual step of asking an appeals court to remove Boasberg from the case, accusing him of attempting to “interfere with President Trump’s core Article II authorities, including the conduct of foreign policy.” (The appeals court did not immediately act on the request.)
The administration also urged Boasberg to cancel the Monday hearing. Boasberg declined, which is how the ACLU’s Gelernt and the Justice Department’s Abhishek Kambli found themselves on opposite sides of his courtroom yesterday.
I was listening in to the hearing via teleconference. My main takeaway: it did not go well for the Trump administration.
The government essentially advanced two arguments:
The administration did not have to comply with Boasberg’s oral order to turn the planes around, because it was superseded by his written order (which made no explicit instruction about reversing the planes).
The written order (which ordered the administration to stop “removing” migrants under the Alien Enemies Act) no longer applied to the two planes by the time it was issued, because the planes had left U.S. airspace, which means the migrants aboard had already been removed from American territory.
Boasberg did not take kindly to either suggestion. “You’re telling me, when I made that very clear point [that the planes should turn around], you’re telling me you felt you could disregard it because it wasn’t in the written order?” he asked the government lawyers, later calling that argument a “heck of a stretch.”
As for the claim that his order no longer bound the government once the deportation flights left American airspace, Boasberg appeared equally annoyed: “I think my equitable powers are pretty clear that they do not lapse at the water’s edge, the airspace’s edge,” he added.
If there was uncertainty about the applicability of his orders, “wouldn’t it have been a better course to return the planes to the United States as opposed to going forward and saying, ‘We don’t care, we’ll do what we want?’” Boasberg asked.
Boasberg also pressed the government on the details of the deportation flights, which yielded some new information. For example, a third flight which took off after Boasberg’s written order — and therefore would have been the clearest evidence of non-compliance — wasn’t carrying any migrants deported under the Alien Enemies Act, the Justice Department said. The government lawyers also said that no further Alien Enemies Act flights have taken off since Saturday, and that nobody targeted under the law had been removed by using a different statute.
Other than that, however, the DOJ lawyers were tight-lipped about the flights, again provoking Boasberg’s ire. When told that the lawyers couldn’t share requested information because of national security concerns, he pointedly reminded them that he was the former presiding judge of the Foreign Intelligence Surveillance Court, a tribunal which deals almost exclusively with classified material.
Boasberg ordered the attorneys to return at 12 p.m. ET today with answers (or at least with a more satisfying explanation for why they couldn’t offer them). In one last jab — underlining how much the government’s assertions had offended him — he added: “I will memorialize this in a written order since apparently my oral orders don’t seem to carry much weight.”
Away from the court hearing on Monday, Trump officials continued to use social media posts and interviews to cast doubt on judicial authority. “I don’t care what the judges think,” White House border czar Tom Homan told Fox News.
But inside the courtroom, the administration’s lawyers seemed to care very much what Boasberg thought, taking pains to politely persuade him that they’d acted by the book.
Even as President Trump himself declares that “He who saves his Country does not violate any Law,” his lawyers repeatedly asked Boasberg for permission on Monday to prove to him that they’d followed judicial directives.
In the case of his oral order, they wanted Boasberg to know that they had made a “good-faith interpretation” that the written order was controlling. (And, in their view, that they’d followed the written order by not initiating any further Alien Enemies Act flights after Saturday, since they didn’t see the order as covering flights that were already done “removing” migrants by virtue of having exited U.S. airspace when it was issued. But this was a sober-minded legal distinction, they argued, not a hard-headed attempt to ignore the judge’s orders.)
When asked if they would provide sworn declarations about the flights if requested, the Justice Department’s Kambli told Boasberg: “We will obviously comply with a court order.” You would never know that Kambli’s boss, Attorney General Pam Bondi, had referred to Boasberg on Saturday as a “DC trial judge” who “supported Tren de Aragua terrorists over the safety of Americans.”
But the real test will likely come in the days ahead. Bondi said Monday that Trump is “absolutely” considering continuing the flights — undercutting what her own subordinates told Boasberg. The administration will be closely watched for how it responds to Boasberg’s next ruling, once he’s considered the facts of the situation, as well as future orders as the case climbs through the courts.
At the same time, the administration is also battling allegations of non-compliance in another high-profile dispute, over its Friday deportation of Brown University professor Rasha Alawieh on Friday, despite a district judge ordering hours earlier that she not be removed from the U.S. without giving the court advance notice.
A Customs and Border Protection (CBP) official told the judge Monday that his agency did not receive notice of the order until Alawieh had already been removed. “At no time would CBP not take a court order seriously or fail to abide by a court’s order,” the official said.
A hearing had been scheduled Monday to review the situation, but it was canceled due to Alawieh’s lawyers withdrawing from the case, shortly after it was reported that Alawieh attended the funeral of Hezbollah leader Hassan Nasrallah last month and described herself as following his teachings (though “from a religious perspective,” not a political one).
What else you should know
Happening today: President Trump is set to speak on the phone with Russian president Vladimir Putin to discuss a potential Russia/Ukraine ceasefire. Trump told reporters Sunday that the two will discuss “dividing up certain assets,” adding: “We will be talking about land. We will be talking about power plants.”
According to Semafor, the Trump administration is considering recognizing the Crimea region of Ukraine as Russian territory as part of a peace deal.
On the topic of ceasefires: Israel launched a series of airstrikes across Gaza this morning, throwing its ceasefire with Hamas into extreme uncertainty. According to the Hamas-led Gaza Health Ministry, the attacks killed more than 400 Palestinians, which would make it one of the deadliest days of the entire war. Israel says the attacks hit dozens of Hamas targets, aimed at the group’s commanders and infrastructure.
Democrats divided: Senate Minority Leader Chuck Schumer (D-NY) is trying to ease tensions with liberal groups after last week’s government funding split; per Politico, his efforts have been largely successful. Schumer canceled an upcoming book tour after reports that activists planned to protest it.
Top headlines: Trump administration moves to reinstate thousands of probationary workers (WaPo)
Chief justice Roberts rebukes the psychopath Trump in terms of defying a judges order.
It's outrageous we spend time and tax dollars defending criminals who should never have been on our shores at all to activist far left judges or anyone else. Yet here we are. If you are a leftist, and not sure just where you settle in--I think you are a civil libertarian at least which is commendable --, they may win a few of these idiot battles and lose the war. Because 80% of the people want them out. Many of them will self deport if they know they might end up in an El Salvadoran prison. So the problem will disappear swiftly. Every one here illegally is a law breaker. My mother told me if I broke laws or hung around with those that do, if I hang out in the gutter, the stink will transfer to me. However, this kind of thinking does NOT apply to US citizens. They do deserve due process. It sounds like you are applying constitutional rights that belong to our citizens to noncitizens who have broken our laws. Some more than others.
Now I know they abused the Patriot Act beyond 911 issues and that is a worry (though again, they are not citizens like the Patriot Act was used against US citizens), but these people have to go. We are talking about organized gangs. Once Trump gets a handle on this, I believe families or less attached individuals will get closer scrutiny.