The Trump administration made an emergency appeal to the Supreme Court hear its case for using the Alien Enemies Act to deport members of a Venezuelan gang.
The alleged members were sent to an El Salvador prison.
The administration is asking the high court to reverse an order from U.S. District Judge James Boasberg, of the District of Columbia, blocking further deportations under the act.
“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country—the President, through Article II, or the Judiciary, through TROs. The Constitution supplies a clear answer: the President,” Acting Solicitor General Sarah Harris wrote, according to NBC News. “The republic cannot afford a different choice.”
This week, federal D.C. appeals court, in a 2-1 ruling, denied the President Donald Trump’s administration’s request to lift a temporary restraining order by Boasberg.
Boasberg, an appointee of President Barack Obama, issued a restraining order against Trump’s use of the Alien Enemies Act of 1789 to deport illegal immigrants believed to be part of Tren de Aragua.
However, the alleged gang members were already in international air space when the judge issued his written ruling, on the way to detention in El Salvador.
Tren de Aragua is a Venezuelan gang, which the Trump administration designated as a terrorist organization. The 1798 Alien Enemies Act allows a president to fast-track the removals under national security concerns.
In the 2-1 appeals court ruling upholding the Boasberg order, U.S. Circuit Judge Karen Henderson, a George H.W. Bush appointee, wrote the majority opinion to reject the Trump administration’s appeal. The ruling determined the Alien Enemies Act was not triggered by the presence of the Tren de Aragua members.
The law—that allows emergency deportation without a hearing—has been used only three times in U.S. history, and typically in a military context, Henderson noted.
“Conditional questions—the legal meaning of war, invasion and predatory incursion—are well within courts’ bailiwick,” Henderson wrote for the majority, as reported in The Wall Street Journal.
Writing in the dissent was U.S. Circuit Judge Justin Walker, a Trump appointee. He asserted the five Venezuelans named in the suit as plaintiffs should have filed in federal court near the Raymondville, Texas, immigration lockup where they presently are held.
Walker contended that Boasberg’s “orders risk the possibility that those foreign actors will change their minds about allowing the United States to remove Tren de Aragua members to their countries.”
Boasberg said in his initial ruling: “Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States. This is something you need to make sure is complied with immediately.”
If the high court accepts the case, Chief Justice John Roberts will be closely watched. He has already waded in slightly regarding the clash of Trump and Boasberg.
After Boasberg’s initial ruling, the president posted on Truth Social, “I’m just doing what the VOTERS wanted me to do,” Trump wrote. “This judge, like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!”
Shortly thereafter, Roberts issued a statement.
“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said. “The normal appellate review process exists for that purpose.”
Asked to react to Roberts’ statement in a Fox News interview, Trump noted the chief justice hadn’t said his name in the statement.
