In another tense hearing, Judge Boasberg says Trump’s use of the Alien Enemies Act has ‘frightening’ implications

By Devan Cole, CNN
(CNN) — US District Judge James Boasberg vowed on Friday to find out whether officials in the Trump administration violated his orders temporarily blocking the use of an 1798 law for deportations by refusing to turn two flights around last weekend.
“I will get to the bottom of whether they violated my order – who ordered this and what the consequences will be,” Boasberg said near the end of an hourlong hearing over whether he should lift the pair of orders he issued last Saturday.
The comments come as Boasberg, the chief judge of the federal trial-level court in Washington, DC, moves closer to deciding whether the administration flouted his orders when it allowed two flights carrying migrants being deported under the Alien Enemies Act to continue last weekend despite his verbal command that the government immediately turn the planes around and halt the deportations pending a legal challenge.
Boasberg, an appointee of former President Barack Obama, appeared incensed on Friday over how the Justice Department has handled the fast-moving case, opening the hearing by tearing into the tone the administration had taken in some of its court filings.
He told DOJ attorney Drew Ensign that the government had used “intemperate and disrespectful” language that he’s “never seen from the United States” as it pushed various legal arguments before him earlier this week, including the suggestion his orders from the bench last Saturday carried less weight than a written order that was issued shortly after those proceedings.
Much of Friday’s hearing focused on arguments from the Justice Department for why Boasberg should lift his orders that stopped, for now, President Donald Trump’s use of the Alien Enemies Act to quickly deport some migrants whom the US has accused of being affiliated with the Venezuelan gang Tren de Aragua. The administration is arguing that Boasberg exceeded his authority in blocking the removals because, they say, Trump’s use of the act is an unreviewable by federal courts.
Ensign repeatedly argued that the migrants subject to Trump’s proclamation invoking the act can instead raise challenges to their removal through individual habeas petitions.
Boasberg did not immediately rule on the request, but he at one point raised the possibility that he could narrow his orders in a way that would allow people who confirm their affiliation with the gang to be deported under the Alien Enemies Act.
Regardless of how Boasberg rules, the administration’s appeal of his orders will be heard at the US DC Circuit Court of Appeals on Monday afternoon.
Still, the judge expressed concern about the “policy implications” of Trump’s use of the AEA for these purposes, calling it an “unprecedented and expanded use” of the 18th century wartime law that has rarely been invoked.
The comments show his discomfort with Trump’s approach to the law, and could signal how he might rule during a later phase of the case, when he decides whether Trump unlawfully invoked the AEA.
The policy implications of Trump’s invocation of the law, the judge said, “are awfully frightening,” as he tested how far a president could take the law if there was not any oversight from courts.
He went on to say that under the arguments pushed by Justice Department attorneys defending Trump’s actions, the president could claim “that anybody is invading the United States,” necessitating another use of the wartime authority.
Trump’s use of the law last week, he said, is “a long way from the heartland of the act.”
DOJ gives Boasberg ‘woefully insufficient’ info
Boasberg has become emblematic of the scores of district court judges who have frustrated – even on a temporary basis – Trump’s agenda during the opening months of his second term.
Earlier this week, Trump even echoed calls for Boasberg’s impeachment, prompting a rare rebuke from Supreme Court Chief Justice John Roberts on the threat.
Boasberg’s frustration with the department spilled further into open view on Thursday after he lambasted it for giving him “woefully insufficient” information in response to his request for more details about the deportations in question.
“The Government again evaded its obligations,” the judge wrote. He went on to criticize DOJ for giving him a sworn statement by an official with ICE’s Enforcement and Removal Operations who “repeated the same general information about the flights” and went on to say that Cabinet secretaries “‘are currently actively considering whether to invoke the state secrets privilege over the other facts requested by the Court’s order.’”
“The Government cannot proffer a regional ICE official to attest to Cabinet-level discussions of the state-secrets privilege; indeed, his declaration on that point, not surprisingly, is based solely on his unsubstantiated ‘understand[ing],’” he added.
The judge had ordered all planes carrying migrants being deported under the act to turn around immediately, but attorneys for the migrants challenging Trump’s proclamation quickly accused the administration of flouting his commands. The Justice Department has repeatedly insisted it did not violate the orders last weekend.
“There’s been a lot of talk over the last seven weeks about constitutional crisis. People are throwing that term around. I think we are getting very close to it,” ACLU attorney Lee Gelernt told Boasberg earlier this week.
On TV and social media as well as in court papers, Trump administration officials have pushed a range of arguments for why they believe the judge exceeded his authority in issuing the orders, while also attacking him as a rogue jurist.
“We have one unelected federal judge trying to control foreign policies, trying to control the Alien Enemies Act, which they have no business presiding over. And there are 261 reasons why Americans are safer now – that’s because those people are out of this country,” Attorney General Pam Bondi said Wednesday on Fox News.
Boasberg, Bondi maintained, is symbolic of the Trump administration’s defeats in court.
“This has been a pattern with these liberal judges,” she said. “This judge had no right to do that. They are meddling in foreign affairs, they are meddling in our government, and the question should be why is a judge trying to protect terrorists who have invaded our country over American citizens.”
CNN’s Emily R. Condon and Tierney Sneed contributed to this report.
This story has been updated following Friday’s hearing.
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