The Trump administration escalated its defiance of constitutional government on Monday as a judge sought details on a case addressing federal authorities’ removal of dozens of people from the country over the weekend without due process.
A Trump Justice Department attorney asserted to a top D.C. federal judge at a hearing Monday afternoon that the government could disobey court orders so long as it was conducting activities outside of the United States, if the order was issued verbally, or if it deemed information that it’s required to provide subject to national security concerns.
Chief D.C. District Judge James Boasberg became increasingly incredulous throughout the hearing. At one point, he asked the DOJ attorney, Abhishek Kambli, how and why the Trump administration continued to fly people that it claimed were subject to an Alien Enemies Act proclamation to El Salvador, even after he had issued verbal and written court orders demanding that the planes return to the United States.
Isn’t it better to return the plane to the United States, Boasberg asked, “instead of saying, ‘we don’t care, we’ll do what we want?’”
The hearing capped a day in which the Trump administration took increasingly outlandish steps to try to avoid having to subject itself to even a minimum of Boasberg’s authority. Before the Monday hearing, DOJ lawyers filed an emergency appeal of Boasberg’s Saturday ruling, sought to have the hearing cancelled, and sent a letter to the appellate court asking for Boasberg to be removed from the case.
Trump is trying to dramatically aggrandize his personal power on a number of fronts, including by invoking the Alien Enemies Act. He claims that the 18th-century law gives him the power to designate any non-citizen and non-permanent resident part of an invading enemy force, allowing him to deport people without any due process or review. Trump claims that illegal immigration constitutes an invasion that qualifies under the act; he’s the first President to invoke the law in peacetime. It comes amid a broad-based effort by Trump and his allies to flout constitutional checks and balances, ignoring co-equal branches of government and the law to conduct an authoritarian takeover of the government.
The collapse of opposition in Congress and the speed with which Trump has managed to eat through limits on the executive’s power has left judges as a final body of independence. Boasberg issued an order at a Saturday hearing that froze the implementation of the Alien Enemies Act proclamation and directed the government to return planes that, at the time, were departing or flying deportees to Central America.
Instead, the flights continued to El Salvador, where, reports say, more than 100 people were transferred to a prison.
At the outset of Monday afternoon’s hearing, attorneys for the government told Boasberg flat out that they would not provide basic information about the deportations. That included how many planes left the U.S. on Saturday, how many people the government believed were subject to the Alien Enemies Act, where people were sent, and when all of this happened.
Boasberg asked if the government believed the information was classified, and therefore could not be shared in public, but the government attorney mostly resorted to unspecified national security concerns as a reason for not replying.
When Boasberg turned to the meat of the hearing – whether the administration had violated his order – the government lawyers kept stonewalling.
At one point, they argued that they were not compelled to obey Boasberg’s verbal order, issued before it appeared in written form on the docket on Saturday. It’s a complete break from regular court procedure that all attorneys practice, and one that stunned the judge.
“That’s a heck of a stretch,” Boasberg remarked at one point.
At another, the Trump administration repeated an argument that it had made in its appeal: that it has unreviewable authority over foreign policy and national security issues, and that Boasberg’s jurisdiction ended once the planes left U.S. airspace.
“The point is that even if the enjoined acts were outside the territory or jurisdiction of the United States, you can’t violate an injunction,” Boasberg said. “You might not like it.”
The judge ordered the DOJ to answer a series of questions by noon on Tuesday. The government suggested towards the end of the hearing that it may continue to refuse to do so.
Boasberg closed the hearing with a reference to the absurdity of the situation. He said that he would issue a written order, “since apparently my oral orders don’t carry much weight.”
