OPINION:
The battle over the deportation of the members of the hyper-violent Venezuelan gang Tren de Aragua (TdA) threatens to become a constitutional crisis. On March 15, U.S. District Court Judge James Boasberg apparently ordered that they not be deported to El Salvador and, in his opinion, the Trump administration ignored his order. No president has the power to ignore a court order.
The Trump administration immediately appealed Judge Boasberg’s order, asking the D.C. Circuit to vacate it. As of this writing, the circuit court, which heard arguments on Monday, has yet to rule on the appeal.
President Trump and Attorney General Pam Bondi said that the judge had no authority to order the flights to be stopped or return to the U.S. because (1) the 1798 Alien Enemies Act makes presidential decisions non-justiciable (i.e., that a judge has no authority to question the president’s action); and (2) the flights were already out of the judge’s jurisdiction, over international waters, when his order came out.
The Alien Enemies Act states that “Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government … who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies…”
Obviously, there is no declared war between the U.S. and Venezuela. No act by Tren de Aragua is the act of a government. Nevertheless, how do Mr. Trump and Ms. Bondi justify their assertion that the deportation of TdA members is a non-justiciable issue under the Alien Enemies Act? As we’ll see in a moment, they are in a dilemma.
They must rely on the 1948 Supreme Court decision in Ludecke v. Watkins for that conclusion. In Ludecke, the court held, on the basis that a war between the U.S. and Germany had been declared at the time of the president’s action, that Ludecke was a German enemy alien and upheld his deportation from the U.S. The case held, in part, that “The very nature of the President’s power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion,” meaning the question is non-justiciable.
There are many other non-justiciable matters. For example, a judge cannot prevent military action against a nation or terrorist group. Political questions are supposedly non-justiciable.
As my sainted law partner, Bill B., always said, the facts are what they are, and we’re all stuck with them. We don’t know some of the most important facts in this case.
The single most important fact is whether there is evidence that the Venezuelan government’s policy was to aid and abet the TdA members getting out of Venezuela and entering the U.S. If it did, that would clearly qualify as a “predatory incursion” under the Alien Enemies Act.
There is, we must assume, intelligence information that Venezuelan dictator Nicolas Maduro pursued that policy. He is no friend of the United States. But that leaves the question unanswered. Ms. Bondi is apparently ready to invoke the “state secrets” privilege to protect such information from disclosure. Intelligence information is precisely intended to be protected by the “state secrets” privilege, as the Supreme Court said in 1876 in Totten v. United States.
There’s the dilemma: No court is going to sustain the president’s action without the facts that may be in our intelligence on the Maduro regime. The president and the AG can either claim that the intelligence supports his actions or forget the Alien Enemies Act.
Judge Boasberg has ruled that a sworn statement of a non-cabinet official that cabinet-level discussions about asserting the state secrets privilege were ongoing is inadequate and that he requires a statement from someone directly involved in those discussions. He is clearly looking for a fight.
The Justice Department has said that while the judge’s oral order from the bench apparently required the return of the airplanes carrying TdA members, his written order didn’t include that. Moreover, DOJ contends that the order was ineffective because it was issued after the aircraft left U.S. airspace. After 30 years of practicing law, I can assure you that judges often vary the terms of their decisions based on what they order orally and what their written decision is.
President Trump has already called for Judge Boasberg’s impeachment, which earned him a rebuke from Chief Justice John Roberts. The chief justice is correct. The best way to disagree with a lower court judge is to appeal, not impeach.
Is the matter of deportation of TdA members non-justiciable? If Nicholas Maduro’s regime’s policy was to push the gang members into the U.S., it certainly is. Were the flights out of the U.S. and beyond the judge’s jurisdiction? They may have been. Let’s get the facts out – including at least a representation of what the intel says — so that judges, congress and the public can make better decisions.
• Jed Babbin is a national security and foreign affairs columnist for The Washington Times and contributing editor for The American Spectator.
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