Three Wise Judges, One Mad King

The administration took a drubbing yesterday in federal court over its summary deportations.

Photo: Evelyn Hockstein / Reuters

On March 15, some five weeks ago, Trump issued a White House proclamation under the guise of the “Alien Enemies Act”—a law from the late 1700s that has only ever been used during times of actual war. In it, Trump designated the gang known as “Tren de Aragua” as a “Foreign Terrorist Organization” that had “infiltrated the United States” and were “conducting irregular warfare and taking hostile actions” against our country.

To make a square “foreign terrorist” peg fit a round “irregular warfare” hole under the Alien Enemies Act, Trump further claimed, without evidence, that Tren de Aragua operates “in conjunction with” a cartel in Venezuela sponsored by the Maduro regime in order to destabilize America.

The White House used this completely fabricated claim to grant itself powers to summarily deport migrants, not just back to Venezuela, but to the infamous CECOT prison in El Salvador, which the U.S. is paying to hold these “criminals.”

Ever since that absurd and dangerous proclamation, civil rights lawyers have scrambled to protect the rights of migrant, moving quickly

• to establish a right to a hearing for any migrants accused of being Tren de Aragua gang members, sometimes on nothing more than tattoos or the say-so of a single ICE agent or informant;

• to identify and provide those illegally deported a chance to have their cases heard and to repatriate them back to the U.S. if possible; and

• to stop the government from sending even more people to prison in El Salvador.

Yesterday, three federal judges stepped up to weigh in on each of these measures.

“That ends now.”

In Maryland, Judge Paula Xinis is overseeing the Abrego García case. She is tasked with implementing the unanimous ruling by the Supreme Court that the government must “facilitate” the return of Abrego García to the U.S. Her efforts have been stymied by Justice Department lawyers who, at least perhaps until yesterday, have refused to provide information about what steps they have taken to secure his release from custody and what they will do to facilitate his return.

Judge Xinis ordered what’s known as “discovery” over why the government won’t simply cooperate. That opened the door for plaintiffs to pose questions, known as “interrogatories,” to the government and to demand production of relevant documents. Among the interrogatories were some quite basic ones:

• Which individuals “have been or will be involved” in “ordering or authorizing Abrego Garcia’s removal to El Salvador, his initial placement in CECOT or his continued confinement in CECOT”;

• The nature of any “agreement, arrangement, or understanding between the United States and El Salvador related to the removal and confinement of Abrego Garcia and any other individuals who were transported with him on March 15, 2025”;

• A description of “all efforts the Government has taken to facilitate the return of aliens wrongfully removed to El Salvador.”

Recall that no less than the Supreme Court had already ordered the government to cooperate: “For its part, the Government should be prepared to share what it can concerning the steps it has taken and the prospect of further steps.”

But the government has not done this. Rather than respond with complete answers to these baseline questions, the Justice Department raised objections and stonewalled entirely. Judge Xinis was very displeased.

Its most galling argument was that the questions were somehow based on the “false premise” that the U.S. “can or has been ordered to facilitate Abrego Garcia’s release from custody in El Salvador.”

(Narrator: The U.S. was in fact so ordered, and directly, by no less than the Supreme Court.)

Judge Xinis could barely contain her ire. She wrote in her order,

Defendants—and their counsel—well know that the falsehood lies not in any supposed “premise,” but in their continued mischaracterization of the Supreme Court’s Order. That Order made clear that this Court “properly required the Government to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.”

I’ve handled dozens of discovery motions in my years as a litigator. But I’ve never seen a sentence quite like this next one: “Defendants’ objection reflects a willful and bad faith refusal to comply with discovery obligations. The objection is overruled.”

Pro-tip: When you see words like “willful” and “bad faith” in an order, you pretty much know the court is lining things up for sanctions.

The government also claimed “privilege” as grounds to refuse to produce answers or documents. This assertion is par for the course with this administration and its officials, who after Trump’s first term asserted bogus “executive privilege” claims that had to be litigated one by one, running out the clock. Here, Judge Xinis called them “Equally specious” objections:

Defendants invoke in name only a range of protections— attorney-client privilege, the work-product doctrine, the deliberative process privilege, the state secrets privilege, and an undefined “governmental privilege”—without providing any supporting information or analysis. As Defendants and their counsel know, the proponent of a privilege must demonstrate the legal and factual bases to invoke the protections that such privilege affords.

Normally, when you assert a privilege in court, you need to create what’s called a “privilege log” that describes the information or document and explains why a certain privilege or privileges apply. The government didn’t make a log, and it’s pretty clear why that is: Whatever “privileges” it may have had (e.g., state secrets) were waived by its own actions, for example, tweeting about the arrangement with El Salvador.

What you can’t do is simply spout a bunch of privileges with nothing to back them up. Judge Xinis called the government out on this and is forcing it to cough up the information. And I just have to quote this next part of her order, with citations removed, because my mouth is still open from reading it.

Given that this Court expressly warned Defendants and their counsel to adhere strictly to their discovery obligations … their boilerplate, non-particularized objections are presumptively invalid and reflect a willful refusal to comply with this Court’s Discovery Order and governing rules. Although Defendants state now that they are willing to “meet and confer” with counsel about the production of such a log, their repeated refusals to meet and confer about much of anything else undermine the reliability of this assertion. The Court thus finds this offer was not made in good faith.

In other words, you didn’t do what I asked, you disobeyed me on purpose, and I don’t trust what you’re saying and promising. She went on:

Nor does the Court find Defendants’ protestations regarding the abbreviated time-line persuasive. For weeks, Defendants have sought refuge behind vague and unsubstantiated assertions of privilege, using them as a shield to obstruct discovery and evade compliance with this Court’s orders. Defendants have known, at least since last week, that this Court requires specific legal and factual showings to support any claim of privilege. Yet they have continued to rely on boilerplate assertions. That ends now.

She gave the government until 6:00 p.m. tonight to produce a log containing the detail necessary to support their privilege assertions or lose them entirely. This judge is going to look especially critically upon bogus assertions of privilege, as defendants have burned through all of their credibility and are likely facing sanctions.

Yesterday, for the first time, the government provided a status update under seal to the court. That move strongly indicates that it contains information that its previous non-informative updates did not have.

Despite the judge’s stern admonitions, the government apparently isn’t done putting up roadblocks. This morning, it filed a motion, also under seal, seeking a 7-day stay of the judge’s enforcement orders over discovery and regular status updates.

Stay tuned.

“People are being thrown out…because of their tattoos.”

In New York, Judge Alvin Hellerstein leaned in hard during a contentious hearing on whether to extend his existing hold on the deportation of migrants under the Alien Enemies Act proclamation. That hold has been in place temporarily since April 9.

The backdrop here is important. Since his initial restraining order, the government has admitted that many of the migrants it rendered to the CECOT prison in El Salvador did not have criminal records. Rather, it only suspected they were gang members because of their tattoo markings. There have been several highly publicized cases of innocent people—a soccer player, a barber—being detained and summarily deported to CECOT on their tattoos alone, even when the markings had nothing to do with gang activity.

Judge Hellerstein took the government to task. “This is not a secret court, an inquisition from medieval times. This is the United States of America. People are being thrown out of the country because of their tattoos." He added that the White House cannot “hire a jail in a foreign country” to subject people “to cruel and unusual punishment not allowable” here.

As for their suspicions of gang membership, the judge was equally firm. “The law is clear: If you are kicking out a person, you give them an opportunity to defend themselves,” the judge said. “You can’t kick someone out by guilt by association.”

Per reporting by the Wall Street Journal on the hearing, Hellerstein criticized the government’s current methods of “notifying” detained migrants that were slated for deportation, saying such notices came too late, needed to be in their native languages instead of only English, and needed to include details about how to obtain counsel. He also raised deep concerns about the treatment of those who had been shackled and sent to CECOT, saying that future detainees ought to be afforded greater protections and more humane treatment.

Judge Hellerstein extended his temporary order into a preliminary injunction while he considers a more permanent one.

“Invasions contemplate military actions.”

In Colorado on Monday, Judge Charlotte Sweeney held a hearing in which she expressed grave doubts over the government’s arguments and broad claims of power under the Alien Enemies Act. At issue was whether she should issue a temporary restraining order covering affected migrants within the state of Colorado.

The backdrop to this case is highly relevant as well. Just two days before the hearing, the Supreme Court ruled in a similar case in Texas that migrants whom the U.S. government was seeking to deport to El Salvador had to remain in the U.S. until further notice.

That SCOTUS order went down like a scene out of a movie. Buses carrying migrants toward planes bound for El Salvador actually turned around just after the 7-2 Supreme Court order came down. As NBC News reported,

At least 28 detainees — most, if not all, understood to be Venezuelan nationals — were placed on buses Friday evening at ICE’s Bluebonnet Detention Center in Anson, Texas, and driven toward Abilene Airport, about 30 miles away.

The motorcade — including at least 18 squad cars from various law enforcement agencies with flashing lights along the North Texas highways — left the ICE facility, with some men on board being told they were being deported to El Salvador and some that they were headed to Venezuela, according to the wife of one of the detainees and two lawyers representing other detainees at the facility. Before they departed, it was not clear what their destinations would be.

The video, obtained exclusively by NBC News, shows the ICE motorcade pass the airport’s exit and then turn around, looping back to return to the Bluebonnet detention facility.

Judge Sweeney noted the similarities between the Colorado case and the Texas one and worried that if she didn’t grant a temporary restraining order, the plaintiffs might find themselves two days later on a similar plane.

In a 35-page ruling, which came out yesterday, Judge Sweeney took on the government’s basic rationale behind the summary deportations, finding the plaintiffs were likely to prevail on the merits of their claim. She expressed grave doubts, for example, over the White House’s argument, laid out in its March proclamation, that migrants are being sent here to conduct “irregular warfare” under the Alien Enemies Act.

“Invasions contemplate military actions,” she wrote. “And at a bare minimum, ‘invasion’ means more than the Proclamation’s description of TdA’s ‘infiltrat[ion],’ ‘irregular warfare,’ and ‘hostile actions’ against the United States—notwithstanding the Proclamation’s conclusory description….” Moreover, “the Supreme Court’s discussion of the ‘power to be exercised by the President such as that conferred by the Act’ rests on the presumption the United States is in a “state of war.”

She concluded that, to the extent the White House “relies on the Act’s invasion and incursion provisions to justify its removal powers, it does so improperly.”

The judge issued a temporary restraining order covering a provisionally certified class of people that instructed the government not to move any of them outside of the District of Colorado without at least 21 days notice.

“We cannot give everyone a trial.”

Trump was very unhappy with the turn of events against his Proclamation and the halting of more planeloads of migrants to El Salvador. He came out yesterday with public criticism, posted to his platform Truth Social, blasting these court decisions and even the Supreme Court (which he was careful to say he still had great respect for).

Trumped posted words what will likely define the essence of his presidency: “We cannot give everyone a trial.”

The idea that trials are too slow or cumbersome and should simply be done away with so we can get on to the business of mass deportations should shock the conscience. It certainly isn’t how our federal judiciary sees things. Further, given that many of these cases are now brought as habeas corpus class actions, the claim that each individual potential deportee must receive an individual hearing is flat out wrong.

It also bears noting that it was Trump who scuttled the bipartisan border bill, which contained billions of dollars to upgrade our immigration courts and reduce the backlog of cases. Had that legislation passed, our immigration system could have processed and lawfully repatriated millions of unauthorized migrants during Trump’s second term, just as it did during previous administrations.

Instead, Trump wants to bulldoze constitutional safeguards then blow past the courts, all to send people to prison in a foreign country when they haven’t even had a fair hearing. That’s un-American and expressly contrary to even the most recent unanimous ruling by the Supreme Court.

So far, Trump hasn’t ordered ICE to deport more alleged Tren de Aragua gang members—or innocent barbers with tattoos honoring their parents—in spite of direct court orders not to. But that possibility lurks, and there is no question Trump is toying with the idea.

Meanwhile, our nation teeters on the precipice of a constitutional abyss, with federal judges the only parties now standing in the direct path of the White House, bravely commanding the mad king to stand down.