Appeals court won’t lift order that barred Trump administration from deportations under wartime law

A federal appeals court refused Wednesday to lift an order barring the Trump administration from deporting Venezuelan migrants to El Salvador under an 18th century wartime law.

A split three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit wouldn’t block a March 15 order temporarily prohibiting deportations under the Alien Enemies Act of 1798.

Invoking the law for the first time since World War II, President Donald Trump’s administration deported hundreds of people under a presidential proclamation calling the Tren de Aragua gang an invading force.

The Justice Department appealed after U.S. District Judge James Boasberg blocked more deportations and ordered planeloads of Venezuelan immigrants to return to the U.S. That did not happen.

Attorneys from the American Civil Liberties Union filed the lawsuit on behalf of five Venezuelan noncitizens who were being held in Texas.

The case has become a flashpoint amid escalating tension between the White House and the federal courts.

Judges Karen LeCraft Henderson and Patricia Millett voted to reject the government’s request to lift the order. Each wrote concurring opinions. Judge Justin Walker, a Trump nominee, wrote a dissenting opinion.

Millett, who was nominated by Democratic President Barack Obama, said Boasberg’s order merely froze the status quo “until weighty and unprecedented legal issues can be addressed” through an upcoming hearing.

“There is neither jurisdiction nor reason for this court to interfere at this very preliminary stage or to allow the government to singlehandedly moot the Plaintiffs’ claims by immediately removing them beyond the reach of their lawyers or the court.”

Henderson, who was nominated by Republican President George H.W. Bush, said the court’s ruling doesn’t prevent the government from arresting and detaining migrants under Trump’s proclamation.

“Lifting the injunctions risks exiling plaintiffs to a land that is not their country of origin,” she wrote. “Indeed, at oral argument before this Court, the government in no uncertain terms conveyed that — were the injunction lifted — it would immediately begin deporting plaintiffs without notice.”

Walker said the plaintiffs’ claims belong in Texas, where they are detained.

“The Government has also shown that the district court’s orders threaten irreparable harm to delicate negotiations with foreign powers on matters concerning national security,” he wrote.

Democracy Forward president and CEO Skye Perryman, whose legal advocacy group also represents the plaintiffs, said Wednesday’s ruling is “an important step for due process and the protection of the American people.”

“President Trump is bound by the laws of this nation, and those laws do not permit him to use wartime powers when the United States is not at war and has not been invaded to remove individuals from the country with no process at all,” Perryman said in a statement.

Boasberg, the chief judge of the federal district court in Washington, has vowed to determine whether the government defied his order to turn planes around. The administration has invoked a “state secrets privilege” and refused to give Boasberg any additional information about the deportations.

Trump and his allies have called for impeaching Boasberg. In a rare statement, Supreme Court Chief Justice John Roberts said that “impeachment is not an appropriate response to disagreement concerning a judicial decision.”

The Alien Enemies Act allows noncitizens to be deported without the opportunity for a hearing before an immigration or federal court judge.

Boasberg ruled that immigrants facing deportation must get an opportunity to challenge their designations as alleged gang members. His ruling said there is “a strong public interest in preventing the mistaken deportation of people based on categories they have no right to challenge.”

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