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President Donald Trump speaks at a reception celebrating Greek Independence Day in the East Room of the White House, Monday, March 24, 2025, in Washington (AP Photo/Jacquelyn Martin).
The Trump administration is continuing to insist it did not violate a federal court order by refusing to turn around several planes carrying more than 200 Venezuelan migrants to El Salvador, all of whom were summarily deported without due process under an 18th century wartime power.
The Justice Department on Tuesday told Chief U.S. District Judge James E. Boasberg that his March 15 order enjoining the government from summarily “removing” migrants under the Alien Enemies Act of 1798 did not require planes already outside U.S. airspace to return to the country, as the “removal” of the migrants had already taken place when the order was issued.
“[T]he injunction thus bars the Government from removing class members; it does not require the Government to undo removals that have already occurred,” the DOJ wrote in the 14-page filing (emphasis in original). “Here, any members of the putative class aboard the referenced flights had already left the United States when the minute order was entered, and thus had already been removed. No court has the power to compel the President to return them, and there is no sound basis to read the Court’s minute order as requiring that unprecedented step.”
The filing comes one day after the Trump administration invoked the state secrets privilege to deny Boasberg any additional information about the deportation flights, claiming that doing so could damage foreign relations and national security.
During the March 15 emergency hearing, DOJ lawyers told Boasberg about two planes they said had already taken off from Texas en route to a notorious prison in El Salvador. Boasberg at about 6:45 p.m. issued an oral order directing the government to turn around any planes carrying individuals being removed pursuant to the Alien Enemies Act.
From the hearing transcript, Boasberg stated:
[T]hat you shall inform your clients of this immediately, and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States, but those people need to be returned to the United States. However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.
But according to the Trump administration, the judge’s oral order was superseded by his 7:25 p.m. written order, which only prohibited removals under the wartime authority and did not include the specific directive regarding the return of the planes. Regardless, the filing asserts that because the flights left from an airport near the “outer limit of U.S. airspace” about two hours before Boasberg’s order, the migrants onboard had already been legally “removed” from the country.
From the filing (emphasis in original):
Accordingly, by the time the Court issued its injunction, the planes’ occupants had already been “transferred” — that is, removed — from United States territory and airspace. The Government thus did not “remove” any class members from the United States after the Court issued its injunction. Indeed, the Government could not possibly have “removed” them from a place they had already departed.
To be clear, the Government did not order any removal flights to return to the United States. But as noted above, declining to bring class members back to the United States is not the same thing as removing them from the United States. As the injunction said nothing about class members who had already departed the country, there was no violation.
The administration further contends that even if Boasberg’s order was intended to compel the return of the deportation flights, the court lacks the authority to deliver such a directive because of the president’s “ample independent authority” to “decline to bring foreign terrorists into the United States.”
“The President’s ultimate direction of the flights at issue here — especially once they had departed from U.S. airspace — implicated military matters, national security, and foreign affairs outside of our Nation’s borders,” Tuesday’s filing states. “As such, it was beyond the courts’ authority to adjudicate.”
Boasberg has vowed to “get to the bottom” of whether his order was violated and who directed such action, promising “consequences.”
A three-judge appellate panel on Monday afternoon heard oral arguments on the DOJ’s request to have Boasberg’s order lifted. During the hearing, one of the judges said that Nazis in U.S. custody during World War II “got better treatment” than the Venezuelan migrants, another indicated he believed the case should have been brought in Texas, not Washington, and the third did not ask any questions.
The case will likely hinge on whether the U.S. is required to provide migrants detained under the Alien Enemies Act a mechanism to challenge whether the act applies to them.
Trump and his allies have demanded the impeachment of Boasberg, which earned a rare rebuke from Chief Justice John Roberts, who reminded the president that “impeachment is not an appropriate response to disagreement concerning a judicial decision.”
Notably, Boasberg has also been assigned to preside over a lawsuit claiming the Trump administration violated federal law by discussing war plans over the Signal app, which came to light when top national security officials inadvertently included a reporter on their group chat discussing an imminent attack in Yemen.
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