President Trump was using his commander-in-chief powers when he had the military fly Venezuelan gang suspects to El Salvador, government lawyers said Monday, arguing that a judge has no right to interfere and stop the planes.
The government has declared the Tren de Aragua gang to be a terrorist organization and Mr. Trump was shipping suspected members out of the U.S. under those powers, as well as the Alien Enemies Act, the Justice Department said.
It filed a document with Judge James Boasberg rebuffing his attempts to intervene in the deportations.
“Once the terrorists had been removed from the United States, any decision by the president to take such actions pursuant to independent constitutional authority is therefore not a violation of the Court’s orders in all events,” the Justice Department said.
Judge Boasberg has a hearing slated for later Monday on the issue, but the department asked him to cancel the hearing, saying it could end up exposing “national security or operational security details” to the public.
Judge Boasberg denied that request.
The Justice Department, in another filing with the U.S. Circuit Court of Appeals for the District of Columbia, asked that Judge Boasberg be kicked off the case.
“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,” Deputy Assistant Attorney General Drew Ensign wrote.
Mr. Trump directed the deportation of 238 Tren de Aragua members to El Salvador with a proclamation Friday, flexing the 1798 Alien Enemies Act.
Immigration activists learned of the deportations and sued, and with planes in the air Saturday, Judge Boasberg stepped in and demanded they be returned.
“Any plane containing these folks that is going to take off or is in the air needs to be returned to the United States,” he said during a hearing.
He reiterated that directive in a written order.
The Justice Department, in its filing Monday, seemed to indicate that the deportation happened after the oral order but before the written order. The department cited precedent finding that an oral order isn’t a final binding ruling.
The department also said Mr. Trump’s powers as commander in chief are separate from the Alien Enemies Act and cannot be questioned.
