Here’s the New York Times’ lede:
The Trump administration denied on Sunday that it had violated a court order by deporting hundreds of Venezuelan immigrants to a prison in El Salvador over the weekend, saying that the president had broad powers to quickly expel them under an 18th-century law meant for wartime.
Is that plausible? Consider this timeline:
i. At approximately 5:00 p.m. EDT on Saturday, Chief Judge Jed Boasberg of the U.S. District Court for the District of Columbia convened a hearing in J.G.G. v. Trump to adjudicate the named plaintiffs’ motions (1) to certify a proposed class of “[a]ll noncitizens who were, are, or will be subject to [President Trump’s] Alien Enemies Act Proclamation and/or its implementation,” and (2) to temporarily enjoin Trump Administration officials from removing any persons in that class from the United States pursuant to the patently unlawful Proclamation the President signed on Friday (and published earlier on Saturday) directing such removal. [See Steve Vladeck’s piece yesterday on the details of the Proclamation and why it is unlawful.]
Remarkably, the DOJ attorney did not know the “status of the planes,” whether any “imminent” removals pursuant to the proclamation were planned for the next 24 or 48 hours, or even whether there were to be “removal flights” (Tr. at 5, 11). Chief Judge Boasberg postponed the hearing to afford counsel time to determine whether removals were imminent but, upon reconvening, counsel conveyed that although he had (finally) talked to his clients, “I do not have additional details I can provide at this time” and that “although “I have been trying to get those details, … I don’t presently know when I would be able to get that” (Tr. at 15-16). (This has been a recurring phenomenon in the past few weeks, in which DOJ apparently was not consulted ahead of time for its views about the legality of proposed action, and thus government counsel appearing in court to defend the Trump Administration are in the dark about what their clients are doing or on what authority.)
ii. During the hearing, and with knowledge that it was in progress, officials apparently directed aircraft carriers filled with (at least) 137 individuals who would be part of that plaintiff class, and subject to the requested injunction, to depart Harlingen, Texas for locations overseas: At 5:26 p.m., GlobalX Flight 6143 departed EDT (it landed in Comayagua, Honduras at 7:36 p.m. EDT); and 19 minutes later, at 5:45 p.m., p.m. EDT, GlobalX Flight 6145 departed Harlingen, bound for San Salvador, El Salvador, where it landed at 8:02 p.m. EDT. The U.S. transferred these persons to El Salvadoran officials, and they are now in custody in an El Salvador prison. (According to a court declaration by a Department of State official, this arrangement was the result of “intensive and delicate negotiations between the United States and El Salvador, and between the United States and representatives of the Maduro regime” in Venezuela.”)
Before going any further, pause to take stock of just that much: During an emergency federal court hearing about whether to enjoin the government from doing something, the government did that very thing, manifestly in order to circumvent the order that it anticipated the court would issue imminently. I don’t recall offhand any historical precedent where executive branch officials have embarked on such an audacious action to anticipatorily stymie the proper functioning of a federal court—let alone to do so in the midst of a judicial hearing.
iii. Between 6:45 and 6:51 p.m., while the planes were in transit (albeit, according to the government, no longer in U.S. airspace), Chief Judge Boasberg orally granted the plaintiffs’ motions (Tr. p.41 (“I am prepared to rule”)), and directed the DOJ attorneys at the hearing “that 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 … . [T]hose people need to be returned to the United States. However that’s accomplished, whether [by] turning around a plane or not embarking … those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.” (Tr. 43.)
iv. At approximately 7:26 p.m., after the hearing ended, Chief Judge Boasberg supplemented his oral directive with a written “Minute Order.” “Given the exigent circumstances that it has been made aware of this morning,” he wrote, “[the court] has determined that an immediate Order is warranted to maintain the status quo until a hearing can be set. As Plaintiffs have satisfied the four factors governing the issuance of preliminary relief, the Court accordingly ORDERS that: 1) Plaintiffs’ Motion for TRO is GRANTED; 2) Defendants shall not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court; and 3) The parties shall appear for a Zoom hearing on March 17, 2025 [that’s later today (Monday)] ….”
v. According to Axios, “[i]nside the White House, officials discussed whether to order the planes to turn around. On advice from a team of administration lawyers, the administration pressed ahead.”
vi. Eleven minutes after Judge Boasberg issued his written order, a third aircraft, GlobalX Flight 6122, departed Harlingen, Texas at 7:37 p.m. EDT, bound for Comayagua, Honduras. It is not yet known (to the court, the plaintiffs’ counsel and the public, anyway) whether that third aircraft carried any passengers who were subject to the court’s orders. (The Washington Post just posted this helpful timeline of the flights.)
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Given all of this, what’s the government’s theory for why the defendants did not violate a court order?
Here are the two things the Administration has said thus far. (By the time you read this, there might be further relevant court filings to consider.)
First, last evening DOJ filed a “Notice to the Court” stating that the defendants had not removed the five named plaintiffs who were subject to an earlier TRO issued by the Chief Judge. The Notice also contained this sentence about the second TRO (discussed above): “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.” (The Notice failed to disclose to the court that such removal from U.S. territory occurred during the very hearing to determine whether to enjoin such removal.)
Second, apparently in response to the Axios article linked above, White House Press Secretary Leavitt issued this statement (as quoted by Axios):
“The Administration did not ‘refuse to comply’ with a court order. The order, which had no lawful basis, was issued after terrorist TdA aliens had already been removed from U.S. territory. The written order and the Administration’s actions do not conflict. Moreover, as the Supreme Court has repeatedly made clear—federal courts generally have no jurisdiction over the President’s conduct of foreign affairs, his authorities under the Alien Enemies Act, and his core Article II powers to remove foreign alien terrorists from U.S. soil and repel a declared invasion. A single judge in a single city cannot direct the movements of an aircraft carrier full of foreign alien terrorists who were physically expelled from U.S. soil.” (Emphasis added.)
Two things are especially noteworthy about this statement. First, Leavitt’s qualification about the defendants’ alleged compliance with the TRO is very deliberately qualified: “The written order and the Administration’s actions do not conflict.” Leavitt did not say—presumably because it ain’t so—that the Administration’s actions didn’t conflict with the Judge’s oral order, of which the relevant officials were well aware and that they discussed while the planes were enroute to Central America. (It could be that Leavitt is trying to exploit the fact that Chief Judge Boasberg said at the hearing that his “Minute Order” would “memoraliz[e]” his oral order—and the Minute Order does not specify (as did the oral order) 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” and “this is something that you need to make sure is complied with immediately.” If so, I’m confident that Chief Judge Boasberg will consider that a form of gamesmanship that’s beneath what’s expected of the Executive Branch and the government lawyers who appear before him, given his unequivocal and pointed admonitions at the hearing itself.) Nor did Leavitt (or DOJ) refer to the third plane that departed after the judge’s written order (which may or may not have contained persons subject to that order).
And then there are the final two sentences, which might fairly to be read to be a shot across the bow to the federal judiciary, intimating that insofar as the defendants have disregarded a judicial order (i.e., the oral injunction), they have the constitutional authority to do so.
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Earlier this morning, the plaintiffs’ ACLU and Democracy Forward lawyers requested that Chief Judge Boasberg “direct the government to submit one or more sworn declarations from individuals with direct knowledge of the facts clarifying the following:
1) whether any flight with individuals subject to the Proclamation took off after either the Court’s written or oral Orders were issued;
2) whether any flight with individuals subject to the Proclamation landed after either the Court’s written or oral Orders were issued;
3) whether any flight with individuals subject to the Proclamation was still in the air after either the Court’s written or oral Orders were issued; and
4) whether custody of any individuals subject to the Proclamation was transferred to a foreign country after either the Court’s written or oral Orders were issued.”
Chief Judge Boasberg has scheduled a hearing this afternoon, at which he could well consider defendants’ apparent audacious defiance of his unequivocal directive, and the Administration’s none-too-veiled suggestion that it has the constitutional authority to disregard an order of an Article III judge that it deems to be beyond the court’s “jurisdiction.” If the judge concludes that any defendants have disregarded his injunction, he might then proceed to address how that violation might be remedied or sanctioned. See, e.g., Nken v. Holder (2009) (explaining that “[a]liens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal” (citing the government’s brief, which explained that “[b]y policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens’ return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary, and according them the status they had at the time of removal”)).
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A quick, additional observation on the “merits” of the President’s proclamation, and on the disturbing recent degradation of standards in DOJ briefs:
Essentially for the reasons Steve discussed in his article, Trump’s proclamation is not authorized by the Alien Enemies Act, most obviously because Tren de Aragua is not a “foreign nation or government.” (Judge Boasberg agreed at the hearing (p.41) that “I don’t think the AEA provides a basis for removal under this proclamation.”) Nor is that a “political question” that courts are constitutionally precluded from reviewing. See, e.g., Zivotofsky v. Clinton (2012). In its currently pending motion for a stay of the TROs in the court of appeals, however, DOJ argues in addition that, “[b]eyond the statute, the TRO violates the President’s inherent Article II authority.” According to that motion, the President has a constitutional authority to “summarily remove” from the United States any individuals whom the President deems “members” of an organization that the President determines to “represent[] a significant risk to the United States.”
This alarming and far-reaching argument about a unilateral presidential removal authority is groundless. In support of it, DOJ writes only the following: “The exercise of authority in this case is firmly supported by longstanding Supreme Court precedent. As that Court has repeatedly held, Article II confers upon the President expansive authority over foreign affairs, national security, and immigration. See Harisiades v. Shaughnessy, 342 U.S. 580, 588 (1952); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936).”
“[L]ongstanding Supreme Court precedent”? The Court in Harisiades didn’t say anything at all about presidential authority—the case involved the constitutionality of a deportation statute—let alone that the President has an Article II authority to remove persons from the United States (or over “immigration” more broadly). And as for Curtiss-Wright: That decision also contained nothing about a presidential removal or immigration power. To be sure, Justice Sutherland’s opinion contained some far-reaching dicta about presidential authority over “foreign policy.” As I wrote here a decade ago, however, they were never persuasive, and thus it was unsurprising that no fewer than eight of the Justices in Zivotofsky v. Kerry “set out to bury those dicta once and for all—to send a strong signal to Executive lawyers to stop citing Curtiss-Wright so indiscriminately.” Chief Justice Roberts, for example, joined by Justice Alito, explained that the Court’s precedents “have never accepted such a sweeping understanding of executive power” as that found in Sutherland’s “expansive language.”
If that’s what “firm[] support” for Article II authority looks like …