President Donald Trump's administration promised the largest deportation of immigrants in U.S. history and is carrying out the process, even if it means bypassing laws, depriving citizens with residence permits and green cards of their rights, and openly defying court decisions.
Up to now, the president and his team had criticized the decisions of numerous courts that had halted their most controversial decisions and issued provisional orders to prevent fund freezes, mass layoffs, or the deprivation of citizenship rights to the children of undocumented immigrants, among many other causes. But they had complied. Not anymore. "We will not stop. I don't care what the judges think. I don't care what the left thinks. We are going all out," said 'border czar' Tom Homan defiantly in an interview on Monday.
The next step in what could be an unprecedented crisis in contemporary times, which the White House hopes will lead to a complete review of Executive powers. Trump and his Administration argue that judges are exceeding their powers (ultra vires), violating the separation of powers, and not respecting the vision of the Supreme Court, interpreting that when the highest court said that the president is immune for everything he does in his official capacity, that also means he has almost total freedom to set foreign or immigration policy. A thesis they have been shaping for some time and is critical to the functioning of the republic and the separation of powers.
"President Donald J. Trump signed a Proclamation invoking the Enemy Alien Act in relation to the invasion of the United States by the foreign terrorist organization Tren de Aragua, using his main powers as president and commander in chief to defend the American people from an urgent threat," his team said, emphasizing his role as a military leader.
Following what was outlined in an executive order that was not publicized, on Saturday night, over 200 citizens, theoretically all Venezuelans and members of the Tren de Aragua gang, were deported to El Salvador to serve their sentence there thanks to the agreement Washington has signed with President Nayib Bukele. The Government relied on that Enemy Alien Act, a law from 1798 designed and until now only used to detain or expel citizens from countries with which the U.S. was at war. Not only is it legally debatable that this was the coverage, but on the same Saturday, just before 7:00 p.m., a federal judge in Washington issued a very clear order to all departments involved, from State to Homeland Security, to halt the process, even if it meant that planes in the air had to turn back.
The Trump Administration not only did not comply with the order, which was notified at 7:30 p.m., but prominent figures such as Elon Musk, the world's richest man, or Secretary of State Marco Rubio, mocked it, sharing Bukele's message on social media saying "oops, too late," sharing the headline of a news article reporting on the decision of federal judge James Boasberg.
The Executive argues that it did not disobey the order but ignored it because it arrived too late, when the planes were no longer in U.S. airspace, so they say the magistrate's authority would no longer be valid. However, according to Axios, it was not at all an accident, a misunderstanding, or a logistical problem due to the fact that the planes were in the air. It was a deliberate and open challenge, crossing a red line. As reported by this outlet, White House Deputy Chief of Staff Stephen Miller, a trusted confidant of Trump and also the mastermind behind the first term's radical immigration policies, "orchestrated" the process along with Homeland Security Secretary Kristy Noem, and "few outside their teams knew what was happening."
A carefully measured first step to see what tools the judges have to react if the Executive stands firm. A provocation, but not direct, as for example, the five Venezuelans who triggered the order, after civil rights associations went to the federal judge claiming they were not part of any gang, have not been deported.
In a statement, the White House press secretary said on Sunday that "the Government did not 'refuse to comply' with a court order," but that "the order, which lacked legal basis, was issued after the foreign terrorists from Tren de Aragua had already been expelled from U.S. territory. The written order and the Government's actions do not conflict. Furthermore, as the Supreme Court has made clear on numerous occasions, federal courts generally do not have jurisdiction over the management of the president's foreign affairs, his powers under the Enemy Alien Act, and his fundamental powers, protected by Article II, to expel foreign terrorists from U.S. territory and repel a declared invasion," she added.
The approach alone leads to an immense legal discussion that will likely end up in the Supreme Court in one way or another, as the final part of the statement summarizes the issue at stake, which some conservative academics consider the key to everything: "A single judge in a single city cannot direct the movements of a plane full of foreign terrorists who were physically expelled from U.S. territory."
In the appeal motion filed on Sunday, Department of Justice lawyers described Judge Boasberg's order, nominated by President Barack Obama, as a "massive and unauthorized imposition on Executive authority." According to them, Trump's actions "are not subject to judicial review" because he embodies the inherent constitutional authority in matters of national security and foreign policy, so federal courts would lack jurisdiction over the exercise of his "war powers".
Beyond that case, the challenge goes much further. The New York Times reported on Saturday the case of Dr. Rasha Alawiew, a kidney transplant specialist and professor at Brown University's medical school, who was deported over the weekend despite living in the country for years, having a perfectly valid visa, and a court order temporarily blocking her deportation, according to her lawyer and court documents.
Alawieh, 34, is a Lebanese citizen who traveled to her home country last month to visit family. She returned to the U.S. on Thursday but was detained and informed she would be deported. Her family went to court, and Judge Leo T. Sorokin of the U.S. District Court in Massachusetts ordered the Government on Friday night to notify the court at least 48 hours in advance of any decision regarding the doctor. However, officials put her on a flight to Paris shortly after. The same judge issued a second order regarding what he considers a very serious breach, and a hearing is scheduled for Monday to determine what happened and whether her return will be allowed.
Challenges to court orders are occurring amid a wave of cases across the country that are causing more than just concern. There are reports of foreign residents with residence rights, through the so-called green card, which is a much more advanced step than mere visas. Even tourists being detained or held incommunicado.
The most serious case is undoubtedly that of a graduate student from Columbia, Mahmoud Khalil, very active in last year's protests against the Gaza war. Four plainclothes officers showed up at his house, arrested him, and took him away. Khalil has a green card and is married to an American, but that has not prevented Secretary of State Marco Rubio from irregularly approving his papers, something that requires a different and more complex process with a decision from a judge, and not just an arbitrary signature from a high-ranking politician. He is accused of being a threat to the country's security, of being a sympathizer of Hamas, due to his role in the protests, which had not even led to disciplinary measures from the University. For the same reason, the administration has also revoked the visa of Ranjani Srinivasan, a doctoral student from India, accusing her of "apology for violence and terrorism."