Judge Boasberg Lays Out How He Thinks Trump Admin Tried To Thwart Him

A D.C. federal judge blocked a bid by the Trump administration to restart removals under the Alien Enemies Act in a thundering Monday order.

Chief D.C. judge James Boasberg denied a request from the administration to overturn an earlier freeze he put in place on removals of Venezuelans under the proclamation.

It comes after the Trump administration pulled off a stunning, authoritarian maneuver two weekends ago: it moved more than one hundred Venezuelans to a prison in El Salvador that is notorious for torture and other human rights abuses, and did so without giving the detainees any form of due process. When Boasberg ordered that the planes return to the United States, the Trump administration took no known steps to comply. There was no opportunity for any of those deported to contest their removal, or to argue that they were not, in fact, members of Tren de Aragua, the gang named in Trump’s proclamation.

Boasberg focused his Monday ruling on that deprivation of due process, finding that “the courts can determine an individual’s alien-enemy status — and are obligated to do so when asked.”

“Before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all,” he wrote of those removed to El Salvador elsewhere in the 37-page ruling.

It’s not clear from the order the form in which Boasberg is suggesting those hearings should take place. Boasberg acknowledged throughout his ruling how extreme and unprecedented the Trump administration’s removals are: he remarked early on that Trump had signed the proclamation in secret, that the act was last invoked after Pearl Harbor, and that the proclamation’s use outside of wartime was “unprecedented.”

In addition to calling basic civil liberties protections into question, the Trump administration’s defiant behavior towards Boasberg over the last week has made concerns around its willingness to comply with court orders more acute. DOJ attorneys across three hearings since the act was invoked told Boasberg that they were unable to provide basic information about the removals; the administration managed to delay responding to Boasberg’s inquiries by having Deputy Attorney General Todd Blanche submit an affidavit on Friday saying that Cabinet-level discussions were ongoing about whether to invoke the state secrets privilege. On social media, El Salvadorian strongman Nayyib Bukele mocked the fact that the removals proceeded after Boasberg entered his order blocking them by writing “oopsie…too late.”

Boasberg wrote in Monday’s order that the Trump administration seemed to have sought to “circumvent judicial review” through how it arranged the removals.

The administration chose to “hastily dispatch flights as legal proceedings were ongoing,” Boasberg wrote. Knowing that Boasberg planned to hold a hearing, federal officials “hustled people onto those planes in the hopes of evading an injunction or perhaps preventing them from requesting the habeas hearing to which the Government now acknowledges they are entitled.”

It’s a direct recognition that the Trump administration sought not only to remove the deportees’ right to due process by invoking the act, but that it potentially structured the removals themselves so as to minimize the possibility of judicial oversight.

The legal issues at play here encompass how far the courts can go in examining Trump’s incredibly broad, reality-free invocation of the Alien Enemies Act, and in part with the more practical question of the deportees’ right to a proceeding that would review whether they are in fact subject to the proclamation.

It’s far from clear how far courts can go in examining the President’s decision-making around when to declare an invasion, even if one is plainly not happening, Boasberg wrote. He held back from issuing a decision based on whether Trump’s proclamation itself is valid, and instead opted to keep the ban on Alien Enemies Act deportations in place based on the administration’s violation of due process rights.

“To date, there is no indication that the Government has provided, or intends to provide, hearings to determine whether those subject to the Proclamation are indeed members of Tren de Aragua,” Boasberg wrote.

For now, Boasberg has entered no order demanding that those who remain in El Salvador be returned to the United States. He told plaintiffs Monday that if they want to convert the current ban to a preliminary injunction, which would have a longer shelf life, they should move to do so before Wednesday.