A federal appellate judge expressed shock Monday at the treatment of Venezuelan migrants removed to an El Salvador prison without due process under President Trump’s radical resurrection of a war powers statute last used during World War II.
“Nazis got better treatment under the Alien Enemies Act than has happened here,” Judge Patricia Millett of the D.C. Circuit Court said, adding: “These people weren’t given notice, they weren’t told where they were going.” The Germans removed during World War II, she noted, were given a chance to appear before an Alien Enemy hearing board.
The Trump administration has effectuated such a swift removal of these migrants — on unsubstantiated claims that they are members of the Venezuelan gang Tren de Aragua — that the lower court judge had to pause a hastily scheduled hearing to find out whether their planes had left the United States yet. Lawyers for the plaintiffs — a few of the Venezuelans — have asserted that the government then defied D.C. District Court Judge James Boasberg’s orders, and Boasberg criticized in a Monday ruling the “government’s decision to hastily dispatch flights as legal proceedings were ongoing, a move that implied a desire to circumvent judicial review.”
Trump has been attacking Boasberg online near-daily, spurring a rare public response from Chief Justice John Roberts.
The Justice Department appealed Boasberg’s ruling temporarily preventing any more removals of these migrants under the long-dormant Alien Enemies Act, putting the case before Millett, an Obama appointee, along with Judges Justin Walker, a Trump appointee, and Karen Henderson, a Reagan appointee, on Monday.
Millett spent much of the hearing pummeling Deputy Assistant Attorney General Drew Ensign on the lack of notice and process given to the migrants.
“If the government says we don’t have to give process for that, y’all could have picked me up on Saturday and thrown me on a plane, thinking I’m a member of Tren de Aragua and giving me no chance to protest it,” Millett said. “[You] say somehow it’s a violation of presidential war powers for me to say ‘excuse me, no I’m not, I would like a hearing.’”
As this panel has often operated on recent cases, Walker then took the role of going after the other side, the ACLU lawyer for the plaintiff migrants. He asked repeatedly why the migrants couldn’t have just filed habeas petitions — legal challenges by people in custody challenging their detainment — to prove that they aren’t gang members, fixating on why the lawyers filed in D.C. court and not in Texas, where some of them are being held.
Millett jumped in sporadically to point out that the plaintiffs’ lawyers didn’t know where many of the around 300 migrants covered by the temporary restraining order are being detained, in order to file habeas petitions in the right courts.
“Is every one of them in the same jurisdiction in Texas?” she asked Ensign.
“Your honor, I don’t know that question,” he replied.
“They don’t either — hard to file,” she quipped of the plaintiffs.
As Millett pointed out, the window of time between Trump’s proclamation that he’d be using the act and the removals of the migrants was also so narrow as to not give them a reasonable amount of time to get a lawyer to file these petitions on their behalf.
Walker also echoed the government’s line that allowing the detention — but not removal — of these migrants would harm national security, taking advantage of the confusion around the government’s apparent rush to get the flights out in the first hours of the case.
“I’m wondering if you can point me to a district court TRO or injunction that survived appeal that stopped an ongoing partially overseas national security operation in the way that this, at the time at least, did order planes to take foreigners from international waters to the U.S.?” he asked ACLU’s Lee Gelernt, after a long windup about how much respect he has for District Judge Boasberg.
Henderson, the third judge on the panel and perhaps the deciding vote, didn’t ask any questions.
The case is one of the biggest swings from the Trump administration yet, based on a sweeping and unprecedentedly muscular vision of presidential power. Even in the realm of immigration, where the executive branch enjoys broad authority, courts blessing this expulsion of migrants to infamously deadly prisons without notice or even bothering to prove their danger would be a significant appropriation of power.
“They are challenging implementation of a proclamation in a way that never gave anyone a chance to say ‘I’m not covered’ — if your argument is: ‘He didn’t have to do that, it’s an intrusion on the President’s war powers, the court is paralyzed to do anything,’ then that’s a misreading of precedent, a misreading of the text of the Alien Enemies Act,” Millett said. “That can’t be an unlawful intrusion on the President’s powers, it just can’t. The President has to comply with the Constitution and laws like everybody else.”
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