Plaintiffs in a lawsuit filed to halt deportations under a rarely-used 18th century wartime law invoked by President Donald Trump asked a federal judge Monday to force officials to explain under oath whether they violated his court order by removing more than 200 people from the country after it was issued and celebrating it on social media.
The motion marks another escalation in the battle over Trump's aggressive opening moves in his second term, several of which have been temporarily halted by judges. Trump's allies have raged over the holds and suggested he does not have to obey them, and some plaintiffs have said it appears the administration is flouting court orders.
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On Saturday night, District Judge James E. Boasberg ordered the administration not to deport anyone in its custody over the newly-invoked Alien Enemies Act, which has only been used three times before in U.S. history, all during congressionally-declared wars. Trump issued a proclamation that the 1798 law was newly in effect due to what he claimed was an invasion by the Venezuelan gang, Tren de Aragua.
Trump's invocation of the act could allow him to deport any noncitizen he says is associated with the gang, without offering proof or even publicly identifying them. The plaintiffs filed their suit on behalf of several Venezuelans in U.S. custody who feared they'd be falsely accused of being Tren de Aragua members and improperly removed from the country.
Told there were plans in the air headed to El Salvador, which has agreed to house deported migrants in a notorious prison, Boasberg said he, and the government, needed to move fast. “You shall inform your clients of this immediately, and that 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 told the government's lawyer Saturday night.
According to the filing, two planes that took off from Texas' detention facility when the hearing started more than an hour earlier were in the air at that point, and they apparently continued to El Salvador. A third plane apparently took off after the hearing and Boasberg's written order was formally published at 7:26 pm eastern time.
El Salvador's President, Nayib Bukele, on Sunday morning tweeted “Oopsie...too late" above an article referencing Boasberg's order and announced that more than 200 deportees had arrived in his country. The White House communications director, Steven Cheung, reposted Bukele's post with an admiring GIF.
Later Sunday, a widely-circulated article in Axios said the administration decided to “defy” the order and quoted anonymous officials who said they concluded it didn't extend to planes outside U.S. airspace. That drew a quick denial from White House press secretary Karoline Leavitt, who said in a statement “the administration did not ‘refuse to comply’ with a court order.”
Leavitt also stated the administration believed the order was not “lawful” and it was being appealed. The administration argues a federal judge does not have the authority to tell the president whether he can determine the country is being invaded under the act, or how to defend it.
The Department of Justice also filed a statement in the lawsuit saying that some people who were “not in United States territory” at the time of the order had been deported and that, if its appeal was unsuccessful, it wouldn't use Trump's proclamation as grounds for further deportations.
Boasberg scheduled a 4 p.m. hearing on Monday and said the government should be prepared to answer a series of questions about the flights laid out in the plaintiffs motion.
Boasberg's order is only in effect for up to 14 days as he oversees the litigation over Trump's unprecedented use of the act, which is likely to raise new constitutional issues that can only ultimately be decided by the U.S. Supreme Court. He had scheduled a hearing Friday for further arguments, but the two organizations that filed the initial lawsuit, the ACLU and Democracy Forward, urged him to force the administration to explain in a declaration under oath what happened.
The government's statements, the plaintiffs wrote, “strongly suggests that the government has chosen to treat this Court’s Order as applying only to individuals still on U.S. soil or on flights that had yet to clear U.S. airspace as of 7:26pm (the time of the written Order).”
“If that is how the government proceeded, it was a blatant violation of the Court’s Order,” they added.