Two judges on Monday said people deported by the Trump administration weren’t given a meaningful chance to challenge their designations as gang members before they were whisked to a notorious prison in El Salvador. The question of whether the deportations followed the proper legal process emerged in a lawsuit over President Trump’s use of the Alien Enemies Act of 1798 to remove alleged members of the Venezuelan gang Tren de Aragua. U.S. District Judge James Boasberg on Monday denied the administration’s request to dissolve a temporary restraining order that halted deportations while he considered a challenge to removals under the law. The Justice Department called the restraining order “an affront to the President’s broad constitutional and statutory authority to protect the United States from dangerous aliens who pose grave threats to the American people.” Boasberg said that the deportees should have been given a chance to argue that they weren’t actually Tren de Aragua members.
Later, Judge Patricia Millett of the U.S. Court of Appeals for D.C. said there was clear precedent for allowing people designated as enemies of the U.S. to challenge that determination. “There were planeloads of people,” Millett said. “There were no procedures in place to notify people. Nazis got better treatment under the Alien Enemies Act than has happened here,” she added, a reference to when the law was invoked during World War II. “Well, Your Honor, we certainly dispute the Nazi analogy,” Justice Department lawyer Drew Ensign responded. The district court’s “intrusion upon the war powers and foreign policy powers of the president is utterly unprecedented,” he told the appeals court. The D.C. Circuit is weighing whether to lift Boasberg’s restraining order and allow Trump to resume deportation flights premised on the Alien Enemies Act.