You all know the story by now so let’s go with the Law & Crime angle
The Trump administration is asking a federal appeals court to remove the lower court judge overseeing a case involving President Donald Trump’s use of an 18th century wartime authority to fast-track deportations of unlawful immigrants. The request from the Justice Department came after the administration was accused of willfully flouting the court’s Saturday order enjoining the government from removing more than 100 individuals from the country.
In a two-page filing with the U.S. Court of Appeals for the District of Columbia Circuit, the Justice Department accused Chief U.S. District Judge James E. Boasberg of acting outside the scope of his authority by ordering the Trump administration to bring back the detainees who were en route to Hondurous and El Salvador during Saturday’s hearing.
The administration did not comply with Boasberg’s oral order issued during the hearing instructing the Justice Department to return the immigrants to the United States. That order was not included in the written order he issued shortly after the hearing ended Saturday evening.
The Trump administration asserted that it fully complied with the court’s order and implored the appeals court to remove Boasberg for making the Justice Department defend its actions in an “open, public hearing.”
That development escalates the stakes of the district court’s inappropriate exercise of jurisdiction and the risks that the district court may force the government to disclose sensitive national security and operational security concerns or face significant penalties from the court. The Government cannot — and will not — be forced to answer sensitive questions of national security and foreign relations in a rushed posture without orderly briefing and a showing that these questions are somehow material to a live issue. Answering them, especially on the proposed timetable, is flagrantly improper and presents grave risks to the conduct of the Government in areas wholly unsuited to micromanagement supervision by a district court judge.
The controversy stems from a Saturday morning lawsuit filed by the ACLU on behalf of several pseudonymous Venezuelan men seeking to bar President Donald Trump from going through with his stated plan to deport the men using the obscure measure. In quick fashion, Boasberg granted the plaintiffs’ request, barring the government from invoking the AEA to remove individuals for 14 days and holding a Saturday evening hearing on the matter.
During the hearing, Justice Department attorneys told the court that two planes had already departed carrying individuals to Honduras and El Salvador. Boasberg at about 6:45 p.m. on Saturday issued an oral order that “unambiguously directed the government to turn around any planes carrying individuals being removed pursuant to the AEA Proclamation,” plaintiffs wrote in Monday’s filing.
From the 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
Boasberg’s brief written order, which was issued at about 7:25 p.m. on Saturday, did not include the same directive ordering the planes to return to the country. Nonetheless, the administration allegedly allowed the planes to land and the individuals were handed over to the custody of other nations.
The DOJ on Sunday said it would abide by the court’s order going forward, but noted that “some gang members subject to removal under the Proclamation had already been removed from United States territory under the Proclamation before the issuance of this Court’s second order.” Those gang members were allegedly on flights that departed the U.S. during the Saturday evening hearing.
Plaintiffs on Monday then asked the administration to answer whether the flights carrying the migrants departed after Boasberg’s oral or written order, when they landed in relation to the orders, and when custody of the individuals was transferred to one of the foreign countries. The filing asserted that the administration was in “blatant violation of the court’s order.”
Boasberg promptly directed the DOJ to respond to those questions Monday afternoon, leading the administration to seek intervention from the circuit court, citing national security concerns.
The district court’s hasty public inquiry into these sensitive national security matters — with no contemplated protections against disclosure of operational details — underscores the urgency of immediate relief from this Court, including an immediate administrative stay that would allow further briefing to unfold in an orderly and appropriate manner and prevents the district court from further efforts to interfere with President Trump’s core Article II authorities, including the conduct of foreign policy. This Court should also immediately reassign this case to another district court judge given the highly unusual and improper procedures — e.g. certification of a class action involving members of a designated foreign terrorist organization in less than 18 hours with no discovery and no briefing from the Government — that have been employed in the district court proceedings to date.
