Trump Says Court Orders Don't Count In An Airplane. Also ... GANGS!

Let's see how that goes down with a federal judge.

On Saturday, Chief Judge James Boasberg of the US District Court for DC took time out of his vacation to issue two temporary restraining orders barring the Trump administration from summarily deporting hundreds of Venezuelan nationals.

It wasn’t enough. The administration is now in open defiance of a court order, provoking the Constitutional crisis we all saw coming.

What Happened?

It began early Saturday morning when President Trump announced that he was invoking the Alien Enemies Act of 1798 to authorize deportation of “all Venezuelan citizens 14 years of age or older” whom the administration alleges are members of the criminal gang Tren de Aragua (“TdA”).

In fact the proclamation was signed late Friday night, but released later, apparently to evade judicial review. And so, by the time the public became aware of the proclamation, hundreds of Venezuelan immigrants who were already in custody pending asylum determinations and who posed no threat to public safety had been loaded onto airplanes and shipped off to El Salvador’s Terrorism Confinement Center (“CECOT”), one of the most violent prisons in the world.

The ACLU and Democracy Forward raced into court seeking immediate injunctive relief on behalf of five named deportees. Judge Boasberg immediately granted a temporary restraining order preventing the administration from deporting the five named plaintiffs in a suit captioned J.G.G. v. Trump. After a hastily-convened Zoom hearing later that afternoon, he certified a nationwide class of all non-citizens in US custody subject to Trump’s proclamation and prohibited the administration from taking any adverse actions against them. And he did it all without changing out of his cheerful Hawaiian shirt!

“Any planes that are going to take off or are in the air need to be returned to the United States,” Judge Boasberg ordered from the bench.

“Oopsie… Too late 😂”

That did not happen. Instead, planes that were in the air landed in El Salvador, where hundreds of asylum seekers were turned over to President Nayib Bukele, a brutal authoritarian who calls himself the “world’s coolest dictator.”

“Oopsie… Too late 😂” tweeted the Salvadoran leader. He was immediately retweeted by the White House, Secretary of State Marco Rubio, and 16,000 other unspeakably cruel assholes.

“There was a discussion about how far the judge's ruling can go under the circumstances and over international waters and, on advice of counsel, we proceeded with deporting these thugs,” one senior White House official told Axios. Another insisted that the order was “not applicable” because the deportees “were already outside of US airspace.”

This appears to be the line the DOJ is taking with the court.

“Federal Defendants further report, based on information from the Department of Homeland Security, that some gang members subject to removal under the Proclamation had already been removed from United States territory under the Proclamation before the issuance of this Court’s second order,” they smirked in a status report yesterday.

To be clear, the order restrained the US government defendants, not the deportees. Judge Boasberg’s order absolutely applied to the White House and federal agencies who controlled that plane.

But what the Trump administration just did cannot be undone. No judge in the country has the authority to order a foreign government detaining noncitizens to return them to the United States. The nearly 300 people whom the Trump administration dumped into that hellhole with no due process are gone. And not only is the government cry-laughing about it, they actually tweeted video of prisoners we sent to El Salvador being abused to a musical soundtrack.

What the Hell is the “Alien Enemies Act of 1798?”

The Alien Enemies Act is a shameful vestige of a terrible, paranoid era in our nation’s history.

During the American Revolution, Benjamin Franklin secured over $2 million in loans from France, which was eager to deal a proxy blow to its rival, Great Britain. The newly-formed American government struggled to repay those loans and soon Congress stopped paying entirely as the nation repaired relations with Britain, with whom France was now at war. France retaliated by attacking US merchant ships.

By 1798, anti-French paranoia was at its zenith in America. Fearing that war with France was imminent, Congress passed a series of repressive statutes, including the Alien and Sedition Acts, which made it a crime for anyone “to print, utter, or publish … any false, scandalous, and malicious writing” about the government.

One of the four Alien and Sedition Acts was the Alien Enemies Act (AEA), which authorized the President to arrest, imprison, and deport “aliens” during wartime. That law remains on the books, codified at 50 U.S.C. § 21 et seq. In it, Congress granted the President expanded powers to remove “alien enemies” from the United States.

Specifically, those powers kick in upon two conditions: (1) When there is an “invasion or predatory incursion… attempted or threatened against the territory of the United States by any foreign nation or government;” and (2) When the President seeks to remove foreign nationals, even those here legally, who are “natives, citizens, denizens, or subjects of the hostile nation or government.”

Obviously, neither of those conditions is in effect today. TdA is not a “foreign nation or government,” and suspected members of that gang are not “natives, citizens, denizens, or subjects” of the nonexistent government.

And yet the Trump administration justifies its actions by pointing to the President’s proclamation as evidence that both preconditions have been met — as if the president can dictate reality by executive fiat. Calling TdA and Venezuela “a hybrid criminal state,” Trump declares that TdA is “perpetrating an invasion of and predatory incursion into the United States,” and that all such members of TdA “are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”

The question is: Can the courts tell Trump that he’s wrong?

Of Course the Courts Can Tell Trump He’s Wrong … Can’t They?

Well … maybe. Judge Boasberg certainly thought he could. But the legal precedent here is exceedingly thin, and the path forward for the ACLU is fraught with peril thanks to Trump’s takeover of the federal judiciary.

To be clear: I am very concerned that an appellate court and/or the Supreme Court will reverse Judge Boasberg’s orders on the merits and rule that the President does indeed have plenary power to deport whomever he wants pursuant to the AEA and that no court has the power to review those decisions.

The AEA has only been invoked three times in our nation’s history: by President James Madison during the War of 1812; by President Woodrow Wilson during World War I; and by President Franklin D. Roosevelt during World War II. As a result, the Supreme Court only addressed it once, in a case from 1948 called Lüdecke v. Watkins.

On December 8, 1941, the day after the Japanese bombing of Pearl Harbor, President Roosevelt issued Proclamation 2526 pursuant to the AEA, empowering the attorney general to detain German nationals residing in the US who might engage in “actual hostility or giving information, aid or comfort to the enemies of the United States or interfering by word or deed with the defense of the United States or the political processes and public opinions thereof.”

Attorney General (and future Supreme Court Justice) Robert Jackson immediately ordered the detention of Kurt George Wilhelm Lüdecke. It was an odd decision, to say the least.

Lüdecke was born in Berlin in 1890 and joined the Nazi party in 1933. However, he soon drew the suspicion of Adolf Hitler and was marked for death during The Night of Long Knives. Lüdecke was sent to a concentration camp, but escaped and fled to Czechoslovakia in 1934, after which he legally emigrated to America. In 1937, he wrote a book, I Knew Hitler: The Story of a Nazi Who Escaped the Blood Purge, detailing his break with the Nazi party and trying to warn the world of the danger Hitler posed.

Notwithstanding Lüdecke’s legal status, Proclamation 2526 unambiguously authorized Attorney General Jackson to detain him during wartime, and so, after summary proceedings before the Alien Enemy Hearing Board, Lüdecke was sent to an internment camp and held for the duration of World War II.

On January 18, 1946, Attorney General Tom Clark ordered Lüdecke deported to West Germany, despite the fact that the war had been over for more than three months. Representing himself pro se, Lüdecke first petitioned for a writ of habeas corpus requesting his release. When that failed, he challenged his deportation under the Administrative Procedure Act, arguing that the AEA could not possibly apply because the war was over. The government countered that the war only ends when the President says it ends, and so the petitioner had no recourse.

Four justices supported Lüdecke’s argument, and four opposed him. The fifth and pivotal vote fell to Robert Jackson, who was now an Associate Justice of the Supreme Court. Had he recused himself, the court would have been tied, and the lower court’s decision vindicating Lüdeke would have stood.

Jackson did not recuse himself.

The Supreme Court ruled against Lüdecke, 5-4, holding that except for “questions of interpretation and constitutionality,” separation of powers prevented the judicial branch from second-guessing the President’s determination as to when World War II ended, even if it deviated from objective reality:

It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come.

The dissent pointed out the obvious potential for abuse: “The Court now holds … that because of a presidential proclamation, petitioner can be deported by the Attorney General's order without any judicial inquiry whatever into the truth of his allegations,” wrote Justice Hugo Black. “The Court goes further and holds … that the Attorney General can deport him whether he is dangerous or not.”

“[A]ny unnaturalized person, good or bad, loyal or disloyal to this country … can be summarily seized, interned and deported from the United States by the Attorney General, and that no court of the United States has any power whatever to review, modify, vacate, reverse, or in any manner affect the Attorney General's deportation order,” he warned.

It seems that President Trump is counting on it.

What Next?

Despite the fact that interlocutory appeals of temporary restraining orders are not a thing, the administration has once again appealed both TROs to the DC Circuit and requested a stay of Judge Boasberg’s orders to allow them to continue to disappear plane loads of Venezuelans into Salvadoran prisons.

The appellate panel consists of: Judge Karen LeCraft Henderson, a George W. Bush appointee who tacked hard right in the Trump era; Judge Patricia Millett, a centrist Obama appointee; and Judge Justin Walker, an unapologetic rightwing partisan put on the bench by Trump. It’s the same panel that stayed Judge Amy Berman Jackson’s order requiring the reinstatement of former Special Counsel Hampton Dellinger, leading to Dellinger’s immediate termination. In short, it’s about as bad as it gets.

That’s not to say that all hope is lost. Lüdecke is readily distinguishable from JGG. For starters, Lüdecke was detained during an actual war, received at least some due process, and was deported to his country of origin. And in his case, the Supreme Court explicitly reserved for itself the power to review the AEA’s “interpretation and constitutionality.” Since then, at least one other court reversed a deportation decision made pursuant to the AEA, affirming that the president’s discretion under the statute is not beyond judicial review.

Judge Boasberg described the applicability of Lüdecke as a “hard question” necessitating additional briefing, which is why he attempted to preserve the status quo by entering the TROs and ordering the DOJ to turn those planes around. Because deportees cannot be recovered from third countries if the court later decides that the administration's actions were unlawful. That’s the definition of “irreparable harm.”

Yet the Trump administration seems even more confident than usual that it will quickly prevail in the courts. After openly admitting it defied Judge Boasberg’s order, a senior White House official asserted that “This is headed to the Supreme Court. And we're going to win.”

If that happens, Justice Black’s ominous warning will have become a reality, and we will be one step closer to autocracy.