Judge calls Trump’s use of Alien Enemies Act ‘problematic and concerning’

A federal judge on Friday expressed doubts about the Trump administration’s use of a wartime power to deport alleged Venezuelan gang members, while also grilling a government attorney about whether officials had disregarded his order not to do so.

James E. Boasberg, chief judge for the U.S. District Court for the District of Columbia, acknowledged that the president has broad authority over foreign policy and deportations. But he said the Trump administration’s use of the Alien Enemies Act to abruptly send more than 100 Venezuelans to a prison in El Salvador without a hearing or assessment seemed “problematic and concerning.”

“I agree it is an unprecedented and expanded use of the act,” the judge said at an afternoon hearing.

Before deputy assistant attorney general Drew Ensign had a chance to address the court, Boasberg scolded him over the government’s actions last weekend, when officials quietly invoked the Alien Enemies Act and launched the deportations after advocates for immigrants filed a legal challenge.

“Why was this proclamation essentially signed in the dark?” Boasberg said of Trump’s executive order. “Then these people rushed onto planes. It seems to me the only reason to do that is if you know it’s a problem and you want to get them out of the country.”

The judge accused Ensign of using “intemperate and disrespectful language that I can’t remember seeing from the United States” in court filings earlier this week. He also questioned whether the attorney failed to appear for a hearing Monday because he realized he had knowingly violated Boasberg’s order about getting the flights back.

Ensign, who appeared uncomfortable, replied that he missed the hearing because he was working on a brief in the case.

The extraordinary back-and-forth occurred at a motions hearing nearly a week after Boasberg blocked the Trump administration from invoking the Alien Enemies Act of 1798 to deport alleged gang members without due process. The act has only been enacted three times before in the nation’s history, always during wartime.

President Donald Trump and his allies have called for Boasberg’s impeachment over the ruling, prompting Chief Justice John G. Roberts Jr. to issue a rare statement stressing that the appeals process, not removal from the bench, is the way to object to a legal decision.

On Friday, Boasberg prodded Ensign for answers he has sought for days about how the government handled the flights, asking whether he understood the judge’s order on Saturday to return flights to the United States if they contained people being removed under the act.

“I made it very clear what you had to do,” Boasberg told Ensign. “Did you not understand my statement in that hearing?”

“Your honor, I understood your statement,” Ensign replied.

Ensign declined to say whether he had communicated his understanding of Boasberg’s order directly to the government agencies handling the deportation flights, citing attorney-client privilege.

During the first half of that hearing Saturday, Ensign told Boasberg he did not have details about any flights deporting alleged Venezuelan gang members that would be leaving the U.S. Boasberg then called a recess to allow Ensign to find information about any such flights.

By the time the hearing resumed, two flights carrying deportees had taken off. But Ensign again told Boasberg he had no details about any flights.

The Trump administration said Sunday that 261 migrants had been deported on three airplanes to a mega-prison in El Salvador, with two of the planes leaving before Boasberg’s order barring such removals. The third plane left after Boasberg issued his written order, but the government has said that plane transported migrants deported under standard immigration laws, not the wartime act.

Boasberg sounded incredulous on Friday as he questioned Ensign about the sequence of events.

“Your clients had you come argue this but kept you in the dark about all this?” Boasberg said.

Ensign reiterated he was not given information about flights.

Boasberg has pressed government attorneys repeatedly this week to tell him what time the two planes carrying the migrants took off and when they landed. But so far, the Justice Department has resisted providing those details, calling Boasberg’s interest an “unnecessary judicial fishing” expedition.

The judge has set deadlines next week for the government to provide him more information about the deportations, including whether the administration plans to invoke the “state secrets act” to keep some material from the court.

In addition, an appeals court panel has scheduled oral arguments Monday to hear the government’s challenge to Boasberg’s temporary restraining order.

Family members of some of the deported have said that their relatives were not involved in the Tren de Aragua gang and that, in some cases, tattoos might have been misinterpreted as indicating affiliation with the group. Robert Cena, an acting regional ICE field director in Harlingen, Texas, acknowledged that “many” of those deported under the act do not have criminal records in the U.S., but he said that “does not indicate they pose a limited threat.”

In comments to the media in the Oval Office on Friday, Trump said he was told the migrants “went through a very strong vetting process” to determine they were gang members and if they weren’t criminals or gang members “we would want to certainly find out.”

Boasberg will have difficult choices to make if the government continues to flout his instructions. He could find administration officials in contempt of court, but that’s a step federal judges rarely take against the executive branch.

A contempt finding would allow Boasberg to impose fines against administration officials to try to force their compliance with his orders. Boasberg could even order officials jailed, but the federal judiciary relies on U.S. Marshals to carry out such orders. Marshals are part of the Justice Department, in the executive branch, and legal experts say it’s an open question whether Trump and his appointees would follow through on such an order.

The attacks come after a number of setbacks in court that have put some of the president’s most important initiatives on hold. Judges have temporarily blocked his ban on birthright citizenship, freeze on foreign aid and moves to fire thousands of probationary government workers, among other things.

In all, opponents have filed more than 130 lawsuits against Trump’s executive orders and other actions. Federal judges have issued about three-dozen injunctions, while the administration has won favorable rulings in a little more than a dozen cases.

The litigation remains in the early stages. Considerably more of Trump’s actions could ultimately be approved at the appeals court level or by the Supreme Court, both of which have a significant number of conservative jurists appointed by Trump during his first term.

On Friday, after Boasberg finished grilling Ensign about his order from the previous weekend, he questioned both parties about the government’s request to set his restraining order aside.

At one point ACLU attorney Lee Gelernt, one of the lawyers who brought the lawsuit, told the judge that the government did return some people who were on the planes — women and people who the Salvadoran prison could not accept because of their nationalities. Gelernt said he would be filing more information on those cases to the court soon.

The judge seemed incredulous as he asked the government how it would ensure that anyone deported under the act was in fact a member of Tren de Aragua.

“How is this going to work?” he said.

Boasberg also raised the possibility of narrowing his temporary restraining order so it only requires the government to give individuals a chance to make a case in legal proceedings for why they do not fall under the Alien Enemies Act. The plaintiffs pushed back against the proposal, saying that using a wartime power against civilians would set a dangerous and troubling precedent.

“The Alien Enemies Act should not be used at all against a gang. It’s very dangerous,” Gelernt said in a news conference after the hearing. “Every nationality in the United States has some organized crime gang … anybody could be termed ‘alien enemy.’”

Boasberg did not issue an immediate ruling. As the hearing came to a close, he reminded the court that he was determined to uncover whether his order last Saturday was ignored.

“I will get to the bottom of whether they violated my order, who ordered this and what the consequences will be,” he said.

Editor’s note: Earlier versions of this article misstated the title for James E. Boasberg. He is chief judge for the U.S. District Court for the District of Columbia. The article has been corrected.