Crossing the Line

The White House brazenly defied judges’ orders over deportations this weekend, setting up high stake showdowns in federal court later today

Photo of Judge James E. Boasberg, courtesy of the NY Times

Our federal courts form the last guardrail against autocratic rule in the U.S. And the Trump administration hates that about them. Because the courts keep issuing orders stopping the administration from doing whatever it wants, legal experts have warned that a clash is inevitable. The fear is the White House would one day simply defy a direct court order and plunge us into a full blown constitutional crisis.

Many don’t know this quite yet, but that day came yesterday.

Despite a direct court order demanding that planes carrying Venezuelan migrants to a prison in El Salvador be turned around mid-flight, and that no further flights bearing such migrants take place, the White House thumbed its nose at the judge. Two planes en route to El Salvador via Honduras failed to turn around, and a third plane bearing detained migrants took off, long after the court order had issued.

There are press accounts that the administration was well aware of the order and that it weighed turning the flights around but ultimately decided not to. In typical form, the White House later claimed that it was not in violation of the order at all, but the plain record says otherwise, and we are going to get a full court hearing soon about what happened.

There are many aspects to this story, from the outrageous use of a wartime law from 1798 to shred constitutional due process, to the “disappearing” of migrants who were not criminal gang members as the White House broadly asserts. Most ominously, the administration’s bad faith refusal to abide by both the letter and spirit of a direct federal court order has now pushed us into a direct constitutional clash between the Trump White House and the federal judiciary.

The backdrop

On Saturday at 5:00 p.m. ET, Chief Judge James Boasberg of the D.C. District Court held a hearing to determine whether a temporary restraining order, requested by the plaintiffs ACLU and Democracy Forward, should issue to stop the transport of Venezuelan migrants to a maximum security prison in El Salvador. The U.S. had contracted with that country to house migrant prisoners in exchange for a fee per prisoner. Trump, the State Department and the Department of Homeland Security intended to make full use of that arrangement.

To justify the deportation of the Venezuelan migrants without so much as a hearing, Trump had quietly issued a proclamation on Friday invoking a law known as the Alien Enemies Act of 1798. You could write treatises on the use and abuse of this law, which allows for the summary removal of foreigners during wartime or invasion and has only been deployed on three occasions. The most recent, during World War II, led to the years-long, unjust imprisonment of more than 125,000 people of Japanese descent in ten U.S. internment camps, all without charge or trial. Two thirds of them were American citizens. It remains a horrific stain upon our history.¹

Trump proclaimed on Friday that suspected members of the gang Tren de Aragua are summarily deportable as foreigners under the Act. In his announcement, Trump claimed:

Tren de Aragua (TdA) is a designated Foreign Terrorist Organization with thousands of members, many of whom have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States.… TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.

Trump then announced, “I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.”

That’s quite a leap to go from a migration of people to an invasion by a foreign government, but this has been a consistent theme for Trump.

Tellingly, as the Washington Post separately reported, the White House didn’t release the Alien Enemies Act proclamation on Friday. Plaintiffs went to court to seek relief after they noticed that Venezuelans who weren’t deportable under existing immigration law were being moved to Texas for deportation flights. Only then did the White House release its proclamation.

The question of whether we are truly under invasion as Trump claims will be determined later by the courts. And it should be noted that the alleged gang members who were sent from Texas to El Salvador were already under detention and posed no active threat. But the immediate question was whether the status quo should be preserved so that migrants—some of whom apparently were not even members of Tren de Aragua, and some of whom might be as young as 14—would not be transferred to El Salvador’s notorious CECOT facility, where evidence of abuse and torture is well documented.

The timing of when the order came down and when the planes were taking off matters. During the hearing on Saturday, Judge Boasberg was highly skeptical of the government’s claims under the Act. At one point, around 5:20 p.m., he paused the hearing so that the government lawyer could ascertain the state of any flights bearing migrants to El Salvador.

The hearing then resumed around 6:00 p.m., and at 6:47 p.m., Judge Boasberg issued an order from the bench, halting planes carrying Venezuelan migrants to El Salvador and demanding they turn around.

“Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” the judge said. “This is something you need to make sure is complied with immediately.”

Keep this order in mind, because a verbal order by a judge has the full force and effect of a written one. Judge Boasberg followed up with a written order at 7:26 p.m. and put it in the docket.

The defiance

In order to establish the timeline of when the order came down versus when flights with migrants left and were in the air, the Washington Post examined flight records of the relevant planes taking off from Texas. Two take-offs occurred during the break in the hearing called by Judge Boasberg. And they were mid-flight when the judge issued his ruling demanding that they turn around.

The record shows that the administration failed to turn those flights around, even after receiving word of the judge’s order. According to reporting by Marc Caputo of Axios,

White House Deputy Chief of Staff Stephen Miller “orchestrated” the process in the West Wing in tandem with Homeland Security Secretary [Kristi] Noem. Few outside their teams knew what was happening.

After the judge issued his order, according to Axios,

[O]fficials discussed whether to order the planes to turn around. On advice from a team of administration lawyers, the administration pressed ahead.

“There was a discussion about how far the judge’s ruling can go under the circumstances and over international waters and, on advice of counsel, we proceeded with deporting these thugs,” the senior official said.

“They were already outside of US airspace. We believe the order is not applicable,” a second senior administration official told Axios.

A later statement by the White House denied that it was flouting the court’s order by claiming the order “was issued after … aliens had already been removed from U.S. territory.”

This is a red herring. Whether the planes were already outside U.S. airspace is irrelevant because the restraining order was upon members of the administration, not the planes. It’s clear the administration had both the power and the opportunity to obey the order but deliberately chose not to.

Moreover, each plane stopped momentarily in Honduras before traveling on to El Salvador, meaning the administration had yet another opportunity to turn the flights around rather than hand over the passengers to their new jailers.

Further, the White House apparently is simply ignoring the fact that there was a third flight that left Texas at 7:36 p.m. Eastern Time, 10 minutes after the written order came down from the court via the docket. The government has not explained why it allowed that flight to take off at all.

For ease of understanding this timeline, the Post created a useful graphic:

The plaintiffs have since filed a brief responding to the government’s claims that it had abided by the court’s temporary restraining order. They noted that

• The government is relying on the court’s written order instead of its clear ruling from the bench demanding that planes turn around;

• Whether or not the planes were in U.S. air space, the U.S. retained custody until the migrants were turned over to a foreign government and landed in El Salvador well after even the court’s written order came down;

• A third plane took off after the written order came down;

• There are many press reports indicating that the government intended to ignore the court’s ruling; and

• Actions by U.S. and foreign officials reinforce plaintiff’s concerns that the goal all along was to defy the court.

Indeed, with respect to the latter, plaintiffs informed the court that

on March 16, at 7:46 a.m. EDT, El Salvador President Nayib Bukele tweeted a New York Post headline reading, “Fed judge orders deportation flights carrying alleged Venezuelan gangbangers to return to US, blocks Trump from invoking Alien Enemies Act,” and added the comment “Oopsie … Too late 😄.” Secretary of State Marco Rubio re-tweeted this post from his personal X account.

Plaintiffs demanded sworn declarations from government officials concerning their knowledge of the timing of the takeoffs and landings of these planes. The judge has set a hearing to discuss these demands at 4:00 p.m. today.

One point to keep in mind as this gets litigated: When a court issues a restraining order to restore the status quo so that it has time to properly adjudicate a matter, you don’t get to say the court is wrong and you won’t obey. That isn’t how it works. The court can issue this order even if it later winds up agreeing that the initial order was wrong and is changing its ruling. That happens in many cases. The point is to allow time for the court to make up its mind without allowing irreparable harm to occur.

Otherwise put, the government has to do the court’s bidding at the outset, even if it disagrees, because otherwise it could get away with almost anything. It could do something from which there is no easy way back, such as shipping migrants off to another country’s prisons where they disappear without a trace.

The harm isn’t hypothetical

There are several ways to look at the nightmare that allowing the White House this kind of unchecked power creates.

From a broad perspective, the administration could order anyone it claims to be a member of Tren de Aragua deported without a hearing and sent to a brutal prison, far from the eyes of the public and the press. We wouldn’t even know who it had done this to. It opens the door to abuses beyond anything we have seen to date.

From an on-the-ground perspective, it appears that wholly innocent migrants have already been swept up in this. A lawyer for one victim explained what happened to her client, and it’s worth relaying here in detail:

Our client worked in the arts in Venezuela. He is LGBTQ. His tattoos are benign. But ICE submitted photos of his tattoos as evidence he is Tren de Aragua. His @ImmDef attorney planned to present evidence he is not. But never got the chance because our client has been disappeared.

We last spoke to our client on Thursday before he was supposed to have a hearing in immigration court, but ICE didn’t bring him. The govt atty had no info about why he was not there. The Judge reset the hearing for Monday. We have been trying to contact our client ever since.

We emailed & called the TX facility where he was last held, more than 1300 miles from the San Diego detention center he was in when we started representing him. They had no info & yesterday told us he was no longer there. This morning he disappeared from [the] online detainee locator.

Our client came to the US seeking protection but has spent months in ICE prisons, been falsely accused of being a gang member and today he has been forcibly transferred, we believe, to El Salvador. We are horrified tonight thinking what might happen to him now.

Not the only defiance of the courts

There’s another case I am watching closely where it again appears that over the weekend the government deliberately ignored a direct court ruling. It indicates that the government’s defiance of court orders isn’t limited to flights involving suspected dangerous Venezuelan gang members.

As the New York Times reported, Dr. Rasha Alawieh, who is a kidney transplant specialist and professor at Brown University’s medical school, has been deported. This occurred even though she held a valid visa, and even though there was an express court order temporarily blocking her expulsion.

Judge Leo T. Sorokin, a federal judge in Massachusetts, issued that order on Friday evening requiring the government to provide him with 48 hours’ notice before deporting Alawieh, who had traveled to Lebanon last month but was detained upon her return to the U.S. But even in the face of this direct order, Alawieh was put on a flight to Paris, presumably on her way to Lebanon.

A hearing called by the judge over this blatant disregard for his order is set for later today.

This instance and the El Salvador bound flights fit a increasingly clear pattern of the White House refusing to comply with court orders then gaslighting the country by claiming that it somehow did. Both instances are hard to explain away, and that means all eyes will be upon the court showdowns that are coming.

It also means that it won’t be long before the Supreme Court will have to weigh in again. The last time it did, it ruled 5-4 against the White House, which had tried to jump over a district court’s restraining order relating to the firing of the head of the Office of the Special Counsel. Will a similar 5-4 ruling emerge here?

And even if it does, will Trump obey it?

Tomorrow in The Big Picture substack, I’ll be writing about the Trump administration’s frequent violations of law and the Constitution, followed by its barrage of protestations, denials and deflections. It’s a pattern that has become so predictable that we should now be able to spot it early and take measures to prepare against both the actions themselves and the deceptions and misinformation that follow. If you’re not already a subscriber, you can become one here.

In the meantime, let’s be clear: Over the weekend, the White House crossed the line and defied direct court orders, no matter what it claims now and no matter how it tries to spin it. The courts must now take the next necessary step and move to hold members of the administration accountable, including in civil contempt of the court’s orders to try and force the return of any unlawfully deported migrants.

1. I know something about the Japanese American internment, as it was the subject of the Broadway musical Allegiance that I composed starring actor and activist George Takei, who was imprisoned as a child in two of these camps.