(NewsNation) — An appeals court heard oral arguments Monday on whether a lower court can hear and address the Trump administration’s deportation of migrants under an 18th-century wartime law.
The three-judge panel consists of Judges Karen Henderson, Patricia Millett and Justin Walker — two of whom were appointed by a Republican president.
Already, the panel has declined a bid from the Trump administration to immediately remove Judge James Boasberg from the case and lift a temporary restraining order on the deportations.
At the outset of the hearing, the Justice Department called Boasberg’s order “unprecedented” and an attempt to “enjoin war powers” of the president.
Some of the judges pushed the government on how much access those deported had to court hearing for review or and if they had the ability to challenge their status.
“There were no procedures. Nazis got better treatment than happened here,” the judge said. “Those on the plane had no opportunity… to file any kind of action.”
The government said it is currently evaluating how much information on the planes can be provided.
Temporary restraining order remains in place
On Monday, Boasberg issued a ruling against the administration, leaving the temporary restraining order in place. He said the order is narrow, applying only to deportations conducted under the 1798 Alien Enemies Act and does not prohibit deportations under other legal authorities.
In his ruling, Boasberg said alleged members of Venezuelan gang Tren de Aragua are entitled to individual hearings to determine if they are indeed members of the gang. The Department of Justice has opposed the use of individual hearings.
“Plaintiffs are likely to succeed on another equally fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all. As the Government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, ‘alien enemies.’ And the Supreme Court and this Circuit have long maintained that federal courts are equipped to adjudicate that question when individuals threatened with detention and removal challenge their designation as such. Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge,” he wrote.
Boasberg said there was a “strong public interest” in preventing deportations of those based on categories they are unable to challenge in court and which could lead to mistaken deportations.
Boasberg also said in his ruling it appeared the administration worked to evade a potential injunction.
“It soon emerged that two planes were indeed likely in the air during the hearing. In other words, the Government knew as of 10:00 a.m. on March 15 that the Court would hold a hearing later that day, and the most reasonable inference is that it hustled people onto those planes in the hopes of evading an injunction or perhaps preventing them from requesting the habeas hearing to which the Government now acknowledges they are entitled,” he wrote.
Deportation flights and the Alien Enemies Act
The dispute, which has escalated over the past week, began with President Donald Trump’s invocation of the 1798 Alien Enemies Act.
The law, which has previously been invoked three times, allows for the deportation or detention of nationals from an enemy nation during a period of war or invasion.
Most famously, the act was invoked in World War II to allow for the incarceration of Japanese Americans, including those who were U.S. citizens, in internment camps despite them not being accused or convicted of crimes. The government apologized for the camps decades later.
Trump invoked the act against alleged members of the Venezuelan gang Tren de Aragua, using it to justify the administration’s deportation of Venezuelans aged 14 and older deemed members of the gang.
Legal experts have expressed doubts about his use of the act, noting that immigration has not traditionally been considered an invasion and that the act assumes Congress has declared war, which is not the case in this scenario.
Court battles over deportation flights
Trump signed the order invoking the Alien Enemies Act on March 15. Two groups had preemptively filed a lawsuit against the act on behalf of immigrants who feared they would be falsely labeled as gang members.
Based on that suit, Boasberg issued a temporary restraining order against deportation flights under the act that morning, before it was officially announced, and set a hearing for later that evening. At that hearing, Boasberg issued a verbal order to halt any pending flights and turn around any flights already in the air. His written order was posted a few hours later.
However, three flights carrying deportees landed in El Salvador later that evening and in the early hours of the following day.
Boasberg ordered the Trump administration back to court, which led to a series of hearings over the past week over the flights.
The Trump administration claims it has not violated the court’s order and that the flights were already in international airspace when Boasberg’s written order was posted. The Department of Justice has also stonewalled the court, refusing to provide requested information about the flights.
Trump has publicly criticized Boasberg, who was appointed by former President Barack Obama. The administration has suggested the court does not have the authority to weigh in on executive branch actions, although judicial review is a cornerstone of the U.S. system of checks and balances.
Boasberg called the information provided “woefully insufficient.” On Friday, the DOJ said that the administration was considering invoking the “state secrets” privilege that would allow them to withhold information.
Boasberg vowed to get to the bottom of the incident and determine consequences for those who may have defied his order.
Over the weekend, another deportation flight was sent to Venezuela. The country agreed to begin accepting flights again after Trump revoked a license allowing the country to export some oil to the U.S. despite sanctions.
