Trump Administration Likely Violated Court Order in Alien Enemies Act Case

They used the Act to deport some 137 Venezuelan migrants to El Salvador even after a federal court issued a temporary restraining order blocking such action.

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While things are not completely clear, evidence increasingly indicates that the Trump Administration violated a court order in the Alien Enemies Act case currently before a federal district court in Washington, DC. Adam Isaacson and Georgetown law Prof. Marty Lederman have detailed analyses of the relevant evidence and legal issues. But the bottom line is that, on Saturday March 15, US District Judge James Boasberg issued a temporary restraining order barring the administration from using the AEA to deport migrants for 14 days, and specifically indicating that they must turn around planes that might be in the air conducting such deportations. The administration nonetheless decided not to turn around two planes then in the air, and one more that was about to take off.

These three planes delivered a total of 137 Venezuelan migrants deported under the AEA to El Salvador, where they are going to be imprisoned for at least one year doing hard labor in that country's notoriously awful prison system. And, while the administration claims these men are members of the Tren de Aragua drug gang, none of them has actually been convicted of any crime or even been given an opportunity to defend themselves against the accusation that they are members of the gang.

Administration lawyers have claimed the judge's order wasn't binding with respect to the men on these planes because the planes were over international waters. This argument is risibly weak. For the explanation why, see this analysis by Notre Dame law Prof. Sam Bray, a leading expert on these kinds of jurisdictional issues.

I would add that, if courts accept the argument that the administration can do whatever it wants to people on aircraft over international waters, without any judicial scrutiny, that would have dire implications for civil liberties. The government could then put anyone it chooses to target - including US citizens -  on a plane or helicopter, fly them over international waters before they have an opportunity to go to court, and then kill, injure, or torture at will. This theory, if taken seriously, would license abuses like the notorious "death flights" used by the 1976-83 Argentinian military dictatorship, which threw dissidents to their deaths from aircraft flying over the Atlantic.

Even if the TRO was indeed legally defective, the proper remedy was not to ignore it, but to obey and challenge it in court on appeal.

A second argument advanced by the administration is that the TRO didn't apply to the deportees on the planes because the Judge only said planes must be turned around in an oral statement, not in his written order. As I understand, such oral orders are still legally binding. But I admit I am not an expert on the relevant protocol, and I welcome correction by experts with greater relevant knowledge.

While things here are not completely clear, it appears likely we have reached the point where the administration is indeed deliberately defying a judicial order. If they manage to get away it, there are likely to be dire consequences, some of which I described here.

Judge Boasberg held an additional hearing on these matters earlier tonight, and clearly wasn't satisfied with administration lawyers' answers to his questions about the apparent defiance of his TRO, and demanded written answers on several issues to be submitted by tomorrow.

In addition the immensely important issue of apparent defiance of a court order, this case also features important substantive issues. If the administration is able to use the AEA as a tool for peacetime deportation, it would set a very dangerous precedent. I covered the relevant issues in detail in previous writings here, here, and here.

Comments

[Darwinnie]

I have lost faith that the conservatives in SCOTUS will defend their constitutional authorities and instead punt to the executive. Clearly Congress has already done so. This will leave the district and appellate judges high and dry, powerless.

[AmosArch]

WON'T SOMEONE THINK OF THE SOUTH AMERICAN GANGSTERS????

[A Woman of No Importance]

I don't care about South American gangsters. I do care that once a precedent has been set that South American gangsters have no due process rights, the precedent will then be extended to lots of other people who aren't South American gangsters. (Especially with this administration.) It's basically the free speech for Nazis argument -- you don't have to love Nazis to think that government suppression of speech is a really bad idea.

And by the way, the real precedent I'm worried about is that this administration will start simply ignoring court orders. At which point genuine fascism will have arrived.

In 1963, Jack Ruby shot Lee Harvey Oswald on national television. No question he did it; the whole country watched him. Yet not only did he get a trial, but the Texas Court of Appeals gave him a new trial when it was discovered the judge had signed a book deal before the trial began. Because the Court of Appeals recognized that even the obviously guilty are entitled to an unbiased judge. Not because we love the obviously guilty, but because we love a fair and impartial judicial process. Same principle here.

[ReaderY]

South American Gangsters have no Due Process rights with respect to deportation, as being allowed to enter or stay in this country is, for all aliens, purely a matter of grace and hospitality and not a matter of right. However, they have statutory rights, and a President cannot bypass those rights by invoking an inapplicable Act of Congress. More fundamentally, a President cannot defy a court order. This President has chosen a test case for doing so involving allegedly unsympathetic characters - we have no evidence other than Trump’s say-so (that is, no credible evidence at all) that any of these aliens actually are gang members - but his defiance of court orders will surely not stop there.

[A Woman of No Importance]

Due process rights can be constitutional, statutory, or common law. With that caveat, I otherwise agree with your post.

And I will go a step further. Donald Trump would be hilarious as president of a third world country, but is catastrophic as leader of the free world. It's as if Idi Amin had been elected President of the United States.

[ReaderY]

MButi Sese Seko comes to mind. Such a great leader, he could basically sleep with any woman he wanted, and he used his country’s budget and foreign aid money extraordinarily efficiently, hardly wasting any of it on providing government services. Of course, it wants to be a truly great leader who can do whatever he wants and commands universal adulation and pussy, it helps to keep the subjects starving.

[ReaderY]

Free world? Isn’t that the enemy side at this point? This country may still mostly resemble the Weimar Republic, the changes are going slower than they were in 1933. But they are proceeding, and the direction it is going in is clear. The court system is a much bigger problem than it was in Germany, and establishing its irrelevance as a fact on the ground takes times and slows things down. But steps in that direction are being taken.

[Martinned2]

To quote the DOJ:

"It is true that many of the TdA members removed under the AEA do not have criminal records in the United States."

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Oh well, that settles it. Illegal criminal gang members should be allowed to stay UNTIL they commit a violent crime.

D'uh! That sounds like good government to me!

[tylertusta]

If it's an invasion or incursion, then we have to wait for them to commit a crime before they can be expelled?

[ReaderY]

We have no evidence other than Trump’s word, i.e. no credible evidence at all, that any of these people are even gang members.

[damikesc]

The tattoos aren't worn by randos.

[David Nieporent]

I suppose that when I point out that this is a fabrication, that Riva will pop in to claim it was just a joke.

[Life of Brian]

"No evidence" beyond, just strictly for example, this declaration from the Acting Field Office Director of ICE's Enforcement and Removal Operations, describing the extensive vetting process behind the individualized determinations of DtA affiliation the for the individuals deported on those planes.

But I have little doubt that won't satisfy you either. What would?

[David Nieporent]

That declaration does not describe any vetting process, or provide any evidence at all. It says "They're gang members because law enforcement says they're gang members."

[rloquitur]

Yeah, and the Prez gets to make that call.

[David Nieporent]

The president does not in fact get to make that call. You are apparently utterly unfamiliar with our system of government.

[Life of Brian]

That declaration does not describe any vetting process

Just in case anyone might think you were being... um, accurate, here's the actual text from the declaration:

Agency personnel carefully vetted each individual alien to ensure they were in fact members of TdA. Officers and agents well versed in gang activity in general and TdA in particular reviewed the information gathered on each alien, identifying TdA members based upon the results of investigative techniques and information such as previous criminal convictions for TdA-related activities, other court records indicating membership in TdA, surveillance, law enforcement encounters, interviews with the TdA member, testimonies and statements from victims of the TdA member, evidence that the alien had committed crimes in coordination with known members of TdA, evidence that the alien had committed sophisticated financial transactions with known members of TdA, computer indices checks, and admission of TdA membership by the alien. ICE did not simply rely on social media posts, photographs of the alien displaying gang-related hand gestures, or tattoos alone.

[David Nieporent]

Exactly. It says that they vetted them. With information and stuff. That is not "describing" anything, let alone a "process."

[Life of Brian]

I swear I'm going to start calling you Mr. Nuh-uh.

Feel free to argue that the above action-verb-laden text describing (yes, Virginia, that's what words do) how they were "carefully vetted" isn't the process you would have chosen, isn't enough process, or whatever you like. But arguing it's not a process at all just makes you look silly.

[Joe_dallas]

lets pretend there was no criminal activity in aurora colorado

[tylertusta]

Why would you need evidence to expel invaders or a hostile incursion?

[Kords]

South American gangsters according to whom? That's the problem with no due process - there is no way to verify the truth of any executive representations. And news reporting indicates that there are serious disputes as to whether at least some of the individuals who were deported were, in fact, gang affiliated. If this is legal, there is literally nothing to stop the executive from deporting American citizens under the guise of those citizens being "South American gangsters" as long as they can get them over international airspace before a court can issue a writ of habeas corpus.

It is legitimately an insane position to take. So naturally it finds support among Reason commenters.

[Joe_dallas]

that they are here illegally is not in dispute

[David Nieporent]

Of course it's in dispute.

[Joe_dallas]

no there is no dispute

[David Nieporent]

Name even one person on that plane, and describe what facts establish that said person was in the U.S. illegally.

[Joe_dallas]

An alien would have a valid visa

You already knew that but thanks for asking

[Kords]

1. How do we know? There has been no process to establish that they were in the U.S. unlawfully. You just trust every word out of the mouth of the executive branch without question?

2. Even if they were here unlawfully, the legal argument the administration is making is not confined to unlawful immigrants. It's that court orders cannot have any effect on parties who are located in international airspace or waters. Even if the administration has so far used that extraordinary grant of executive power in international territory only against unlawful immigrants, that does not afford anybody else any protections.

[Joe_dallas]

Does a district judge in DC have jurisdiction for activity happening outside his district?

The links to this post show the events were occuring in harlington Tx

[Darwinnie]

Yes because the agency is located in DC.

[not guilty]

"Does a district judge in DC have jurisdiction for activity happening outside his district?"

Yes. Equity acts in personam. The defendants in the lawsuit are in D.C.

[Jack Jordan]

An order is an order, verbal or written. The only potential defense is (the government must prove) that the order was not lawful. See 18 U.S. Code § 401: federal courts "have power to punish by fine or imprisonment, or both" any "such contempt of its authority" as (but "none other" than) "Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."

Other irrelevant offenses in Section 401 are:
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; and
(2) Misbehavior of any of its officers [judges and attorneys actually employed by the court] in their official transactions.

[Dr. Ed 2]

All subject to Presidential Pardon.

[Jack Jordan]

Of course, but so what? Lawyers can be disbarred for this conduct, and no presidential pardon will save them from that consequence.

[Bob from Ohio]

"Lawyers can be disbarred for this conduct"

No lawyer who appeared before the judge violated any order. None was the decision maker.

[Jack Jordan]

Do you know that? Or are you speculating? If you know, how do you know?

[Katall]

Maybe not. It is unclear that the president can pardon some convicted of criminal contempt.

[SRG2]

The "defence" that the cultists will have will include arguments that:
* regardless of any other argument, the judge had no jurisdiction
* he certainly didn't have jurisdiction once the planes were over international waters
* but even if he did. the planes couldn't safely turn back
* the Act gave full authority to the Executive
* The deportees were members of a drug gang so who cares
* The king can do no wrong

[AmosArch]

> The deportees were members of a drug gang so who cares

You sure didn't care when the law was broken countless times by multiple parties both private and governmental to let them in in the first place. Now you're going to bat to keep the violent foreign drug cartel gangsters here because of some questionable order. And you think you are the one looking good?

[Sarcastr0]

Few things are more corrosive in politics than the conviction that you have been wronged so much that you're justified in breaking all the rules to get even.

[Krayt]

See also innumerable initiatives to gjt 'im the previous 8 years, facetious examinations of tax records so they could be leaked, facetious concern for disinterested rule of law by bloating up charges so you could have a felony eo you could have something to kick him off ballots for in a purple state or two, having fine him half a billion dollars before the election to harm him, this is the king seizing the estate of uppity lords.

I will quote a wise man: Few things are more corrosive in politics than the conviction that you have been wronged so much that you're justified in breaking all the rules to get even.

He shouldn't be here, but the Democrats pulling out all the stops in opposition to the Constitution's design principles, thou shalt not weaponize the Constitution against thine enemies, has brough forth the world about you.

He could have said off into the sunset after his 4 years, but you kept it up.

He could have won another 4 years, in which case it would be over now, and I don't think anybody on either side would think that worse or of more impact than what we're seeing.

Why don't you impeach him for a real, major, significant, not hyperbolated reason: the political claim arguing he's thrown in with an enemy.

[Jack Jordan]

This calls to mind Thomas Paine in the dissenting opinion of Justices Stevens, Blackmun and O’Connor in United States v. Alvarez-Machain, 504 U.S. 655, 688 (1992):

As Thomas Paine warned, an “avidity to punish is always dangerous to liberty” because it leads a nation “to stretch, to misinterpret, and to misapply even the best of laws.” To counter that tendency, he reminds us:

“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”

[Sarcastr0]

So your response to my post about how bad following the conviction that you have been wronged is to declare how much Trump has been wronged.

You seem to be having some trouble with the basic concept.

[Jack Jordan]

Such a position also egregiously violates our Constitution. Article VI (with Article II) requires every state and federal public servant to swear or affirm they will support our Constitution. 5 U.S.C. 3331 requires all federal public servants except the president to swear to support and defend our Constitution. Article VI emphasizes that our Constitution is "the supreme law of the land." There is no purportedly higher law of an eye for an eye.

[SRG2]

How do you know that they were all violent foreign cartel gangsters? Because Trump said so?

[David Nieporent]

You sure didn't care when the law was broken countless times by multiple parties both private and governmental to let them in in the first place.

[Citation needed.]

[Jack Jordan]

Your (mere) assumption that all "deportees were members of a drug gang" goes to the very essence of the problem here. What process ensures they were? Even if all these deportees were, what process ensures all deportees will be in the future? What process ensures you or I won't be one of the deportees?

[MollyGodiva]

The ability to deport anyone at will without due process is the goal.

[Riva]

This judge had NO authority to direct the movement of US aircraft in flight over foreign airspace carrying foreign terrorists expelled from the US pursuant to nation security concerns. The chief. executive need offer no “defense “ but the facts and the law, and that includes the constitution, overwhelmingly support the president. You f’ers want to provoke a constitutional crisis premised on this judge’s illegal overreach? Bring it on.

[Voodoo]

You have such strong and precious feelings.

[MollyGodiva]

Without due process, there was no way to know if those deported were allowed to be deported.

[rloquitur]

Without jurisdiction, the court cannot act!

[not guilty]

A federal court has jurisdiction, in the first instance, to decide whether it has jurisdiction to decide the merits of the case or not. At that interim stage, Congress has authorized the court to issue all writs necessary or appropriate in aid of its jurisdiction. 28 U.S.C. § 1651(a). Those interim writs must be obeyed unless and until they are superseded, even if the court eventually determines that it is without jurisdiction to rule on the merits.

Disobedience or resistance to such an interim writ can be punishable as criminal contempt. 18 U.S.C. § 401(3).

[rloquitur]

Yes, but you have to presume that the judge is going to follow the law, and so you'd construe an order like that to exclude things over which the judge has no power.

The real issue here is political. No one is going to jail. The court of public opinion is not going to like, "Yeah, we judges can issue illegal orders, but you have to follow them."

[MollyGodiva]

When the hearing began the immigrants were on US soil. A judge does not lose jurisdiction because the government removed them from US soil during the hearing.

[rloquitur]

Sez you? The judge thought otherwise. "Not much I can do after they've left US."

[Riva]

Any limits to this new judicial power? If a complaint is filed that implicates someone on board a US carrier in the South China Sea, can the judge redirect the fleet? Or can he order the US to establish a peacekeeping force somewhere overseas? Maybe Ukraine should sue and the judge could order their admittance to NATO? The Babylon Bee covered this insane judicial overreach well with the headline: Federal Judge Orders Astronauts Be Returned To Space Station.

[windycityattorney]

How could you be so obtuse? You remind me of people who argue that seizing someone in New York and quickly transporting them to a far flung state; that a court in New York is therefore deprived of jurisdiction over questions of the validity of the initial seizure and the agents in New York who effectuated it. That is not how the law works.

In this case; the ACLU filed suit against certain officers of the fed govt whose headquarters are in D.C. Presumably, the orders to detain and remove came from someone and in government; shit rolls uphill.

Trump's recent social media tirade about the liberal maniac judge only makes him look like a whiny unprofessional bitch. Which his supporters parrot and now the cascading calls from the MAGA wing for yet another federal judge to be impeached. What are we up to? 9 now?

I can hear the lamentations from the oval office from here.... "oh won't please someone rid me of these meddlesome courts."

[rloquitur]

Dude, you might want to check with "Judge" Boasberg himself. He said that once they are out of the country, that there was little he could do.

Speaking of lawlessness, can you explain to me why the judge gets to harangue the lawyers about knowing there was a hearing and getting the planes in the air? So the Executive is supposed to anticipate this judge's order. This judge should be removed from the bench just tor that.

[Jack Jordan]

rloquitur, I don't understand the logic of an argument that, first, an order issued from the bench isn't binding but, second, a statement about such order is binding. Can you explain to me how that works? The point at this point (as the judge's questions clarified) is to ascertain who did what when here on the ground in the U.S.

[rloquitur]

The second statement isn't "binding" in the coercive sense of the word. Just that a litigant can't really get in trouble if he takes the judge at his or her word.

At the end of the day, this is a political fight. The judge doesn't seem to realize it. The whining about the fact that the government knew about the hearing is risible, and he should be pilloried for it. It is Exhibit A for a case against an out of control judge. And I see a lot of calls for contempt. From a political standpoint, how in the world can this judge incarcerate anyone involved here when he didn't incarcerate Kevin Clinesmith?

[Jack Jordan]

rloquitur, again, you desroy your own credibilty. How can the question of whether the president or a judge violated our Constitution be a mere "political fight"? How can the question of whether "this judge" has the power to "incarcerate anyone involved here" depend on any "political standpoint" or whether he "didn't incarcerate Kevin Clinesmith"? How could any decision not to "incarcerate Kevin Clinesmith" be relevant here?

[tylertusta]

My favorite part of Judge Boasberg's little tantrum yesterday was when he complained that the government didn't follow a TRO that he hadn't even issued yet, orally or otherwise.

[Jack Jordan]

Riva, of course there are limits to all judicial and presidential powers. We put that very plainly and prominently in our Constitution, and every judge and president knows it:

"All legislative Powers" are "vested in a Congress." We vested power in Congress to "make all Laws which shall be necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." That clearly includes judges and presidents.

[rloquitur]

One of those thingies is jurisdiction . . . .

[Jack Jordan]

rloquitur, you're right. Jurisdiction is, indeed, a significant problem for Trump right now. He clearly had no jurisdiction to have people put on planes and removed from the U.S. after he issued his proclamation on Saturday. See 50 U.S.C. 23:

After any such proclamation [by the president] has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

[rloquitur]

Doesn't change the fact that Section 21 gives president power to remove. This is concurrent.

[Jack Jordan]

Again, rloquitur, you destroy your own credibility. Of course, Section 23 means exactly that the president has no power to order the removal of anyone under Section 21. Section 21 merely gave the president the power "to provide for the removal." Section 23 gave judges sole power "to order such alien to be removed" and only after other due process of law.

[Jack Jordan]

Riva, the judge wasn't playing air traffic controller and directing flights. He was directing federal employees on the ground in the U.S. How does the Constitution support the president here as against a judge? I'm not implying it doesn't. I'd just like to know what language in our Constitution you're invoking.

[Riva]

You're right, it isn't playing air traffic controller. And NO ONE argued that by way. This hack was attempting to interfere in the execution of an overseas national security mission in contravention of the authority and orders of the President pursuant to the Constitution and statutes. The judge should be impeached and removed from power.

[Jack Jordan]

Riva, this was not even close to "an overseas national security mission . . . pursuant to the Constitution and statutes." This was a domestic law enforcement function that was controlled by the very federal statute that Trump and the DOJ invoked. See https://open.substack.com/pub/blackcollarcrime/p/on-saturday-did-the-us-remove-aliens?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

[SPKA]

Anticipating Josh Blackman: the Trump administration was justified in ignoring this judge's order because when the judge was appointed the President did not say "no backsies" with fingers crossed behind his back. Then Josh will complain he doesn't understand why he's persecuted as being a hack.

[NotAnExtremist]

J.D. Vance is fond of the probably-apocryphal quote attributed to Andrew Jackson, "John Marshall has made his decision; now let him enforce it." The Trump administration's willful refusal to obey a court order is consistent with that attitude, and, for that matter, so is Donald Trump's entire criminal career. He has never cared for any authority but his own.

[David Nieporent]

The Jackson quote — though still bad — is oft misinterpreted, though. Jackson was not actually defying a court order. Neither Jackson personally nor the U.S. government was a party to the case.

[F.D. Wolf]

When a federal district judge, and later Justice Douglas, ordered President Nixon to stop bombing Cambodia, did he? Of course not, because he wasn't retarded and wasn't going to place American lives and security in jeopardy just because some left-wing kook judges "ordered" him to. After the Second Circuit stayed that order, Justice Marshall, not exactly Mr. Conservative, refused a motion to lift the stay, in which he rebuked "lawlessness by judges". Justice Douglas then lifted the stay, and Marshall reimposed it three days later. During those three days the order was in effect, Nixon ignored it, and, it seems very likely, he would have ignored it regardless of its duration.

Non-acquiescence to judicial orders must be used sparingly, but is one of few checks the executive has on the judiciary. And a judge's order to return a bunch of murderers, rapists, and child traffickers to American soil after they have already left is an appropriate time to exercise that check. I'm sure the esteemed constitutional law professor is familiar with the case of Ex parte Merryman (1861), Chief Justice Taney's issuance of a writ of habeas corpus, President Lincoln's refusal to obey the writ, and Lincoln's explanation of his refusal during an address to Congress on July 4, 1861. But for those who are not: https://constitutioncenter.org/blog/lincoln-and-taneys-great-writ-showdown

[Dr. Ed 2]

Taney wrote in his diary that he expected Lincoln to have him arrested.

[David Nieporent]

Is this as true as the rest of your historical stories?

[Cataphract]

This myth has been debunked many times. The order was reversed within hours and the military had made preparations to obey the order if that were not the case.

[Kenneth Almquist]

Yup. See for example https://www.justsecurity.org/108374/pentagon-obeyed-courts-cambodia-bombing/

[Jack Jordan]

The circumstances of President Lincoln's conduct are so amazingly different from those of President Trump's conduct that the analogy does not hold.

You (and many others) merely assume that the order would "return a bunch of murderers, rapists, and child traffickers to American soil." Why? When you assume, you make an ass out of u and me.

The whole point of opposing what Trump is doing is that there is no process to ensure that the people who were scooped up and sent to a prison in El Salvador (and those who will be later) actually are murderers, rapists, and child traffickers. What process ensures you or I won't be with them some day?

[Social Justice is neither]

No, the only point is opposing Trump and you'd gladly see other Americans raped and murdered for that goal. Your crocodile tears about the law and due process are seen as the partisan lies they are since you only seem to care about the allegations of abuse on one side and hold those allegations as fact

[Jack Jordan]

I was a soldier, and my brothers-in-arms and I daily risked our lives and our safety (and sacrificed much) to fulfill our oaths to support and defend our Constitution against all enemies, foreign and domestic. That's all I'm trying to do now. I expect our most powerful and prominent public servants to fulfill their oaths, too. They lead by their example. If they violate their oaths and our Constitution, others will follow them.

Many in our Armed Forces have sacrificed their own lives or their health and happiness to fulfill their oaths. We have actually earned the right (which all Americans have) to insist that the president and other government employees fulfill their oaths of office.

As a soldier, I served without regard to any partisan consideration whatsoever. I write now without regard to any partisan consideration whatsoever. I could not care less about supporting any mere partisan person or organization.

[rloquitur]

Yeah, I served too. Not to pooh-pooh your service, and I understand the idea that law has to be followed. But you've identified nothing here that violated a court order. Where were you when Judge Merchan violated ethics rules?

The fact is that these guys had been removed by the time the court issued its written order. Too bad; so sad.

[Jack Jordan]

rloquitur, you plainly missed the point of my response. Look again at the post that prompted my response. How is the fact that you "served too" relevant to anything? I didn't ask about or impugn your motives for commenting on anything now or at any other time.

You also said that you "understand the idea that law has to be followed," so you know that it's utterly irrelevant to ask now, "Where" was I "when Judge Merchan violated ethics rules?" Even assuming some truth in your assertion that in some other matter "Judge Merchan violated ethics rules," what possible relevance could that have to the question we're discussing? That's not a rhetorical question. I'd like to see you answer it.

[David Nieporent]

Where were you when Judge Merchan violated ethics rules?

Justice Merchan had a minor violation and was reprimanded for it. What exactly does that have to do with this discussion?

The fact is that these guys had been removed by the time the court issued its written order.

Were they still in U.S. custody at the time? Then what difference does it make whether they "had been removed"?

[Voodoo]

Were the deportees proven to have committed the crimes you've noted?

Also, did the DC judge's order direct that the alleged "bunch of murderers, rapists, and child traffickers" be released onto American streets?

Also, had all of these people "already left ... American soil," as a legal matter?

[rloquitur]

Check with the judge, he said it. Also, check out the movie, Argo. LOL

[Jack Jordan]

Wolf, the actions Saturday were in no way analogous to waging a foreign war. They were not even in any way analogous to waging defensive domestic warfare (defending against a suddenly-attacking invasion or predatory incursion force). They were analogous to routine law enforcement. They were, for the most part, mere routine law enforcement actions. Even Trump proclaimed this is all boils down to (at most) routine violent crime and actually, merely purported "membership" in a criminal organization.

[Devin Watkins]

It seems to me more the second argument that is being made. The oral statements are not formal judicial orders, only the written one was (they could have thought that the judge changed their mind before issuing the actual order as to planes coming back). It only prohibited "removal" and they had already been removed. Therefore they never violated the actual judicial order. I'm not certain if the administration is correct, but they do cite sources where judges seem to have said that only the written order is an actual injunction.

[Jack Jordan]

How did you reach the conclusion that the judge's verbal orders were "not formal judicial orders"? Words ordering someone to do something are an order. Anyone who has served our nation in any capacity knows that.

[Life of Brian]

How did you reach the conclusion that the judge's verbal orders were "not formal judicial orders"?

DOJ submitted a brief brief on that very issue yesterday. It was a bit disappointing (if predictable) that Ilya went with inflammatory media writeups rather than taking on what DOJ actually said.

In particular, the language in the cited D.D.C case that "an injunction does not become an injunction until it is reduced to writing” seems remarkably straightforward and tough to misconstrue. I suspect that's why Ilya tiptoed away from that part of the analysis.

[Jack Jordan]

"Brian," thank you for that link to the DOJ brief. Certainly, due process should include a written order. But I didn't see anything that argued that, in a time sensitive situation, an order could not be issued from the bench and then followed by a more detailed written order. The DOJ implied that they and the president are free to ignore the order until a written order (with reasons) is issued. I doubt that's correct in all situations.

The DOJ brief even revealed their game plan: "As to any flights that were already outside U.S. territory and airspace, anyone aboard had already been 'removed" within the meaning of the Alien Enemies Act and the Court’s order, and therefore were not covered by the order."

[Life of Brian]

The DOJ implied that they and the president are free to ignore the order until a written order (with reasons) is issued.

Did they also "imply" that the moon is made of green cheese? Because they didn't say anything at all about the written order needing to contain reasons, and similarly I've not seen anyone argue that they ignored any part of the injunction that the judge actually reduced to writing, even in the period between the initial verbal utterances and the minute order.

[Jack Jordan]

"Brian," indeed they did "say anything at all about the written order needing to contain reasons." The DOJ brief presented the following argument:

“A judge who proclaims ‘I enjoin you’ and does not follow up with an injunction has done nothing,” and, if the judge “does not record an injunction or declaratory judgment on a separate document, the defendant is under no judicial compulsion.” Id. at 1427-28. That accords with Federal Rule of Civil Procedure 65, which “contemplates the issuance of a written order.” Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000). Indeed, the Rule provides that “[e]very order granting an injunction and every restraining order must … state the reasons why it issued,” “state its terms specifically,” and “describe in reasonable detail … the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1). Written orders are crucial because they clarify the bounds of permissible conduct. See Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 105 (2d Cir. 2009) (Miner, J., joined by Sotomayor and Katzmann, JJ.) (“Requirements for the form and content of preliminary injunctions and temporary restraining orders are properly met by a written order.”).

[Life of Brian]

Oh, I see the disconnect -- I read your first post as saying they had argued that the order needed to provide a rationale for the contents/scope of the injunction itself.

What you're citing here is much higher-level ("reasons why [the injunction] issued"), and DOJ didn't argue those reasons were missing from the minute order or even mention that point again in any way. They were just quoting the full language from the applicable FRCP rule in support of their actual argument, that the actual scope of the injunction is what was ultimately reduced to writing.

[David Nieporent]

DOJ cited no binding authority, but a couple of out-of-district cases and a single DC district court case, that said that an injunction, not a TRO, must be in writing.

[MollyGodiva]

You miss the part where the lawyers stonewalled the court long enough for the administration to get the planes off the ground.

[rloquitur]

That doesn't pass the "so what?" test.

[Jack Jordan]

And the fact that Trump started this ball rolling by either deliberately waiting until Saturday to issue his proclamation or rushing to do so on a Saturday. That was the biggest tell of all. The DOJ briefing even confirmed (in writing) Trump's tactics: "As to any flights that were already outside U.S. territory and airspace, anyone aboard had already been 'removed' [ ] and therefore were not covered by the order."

[rloquitur]

Once again, doesn't pass the "so what?" test.

[Jack Jordan]

What they said is evidence of what they did and intended to do. It is evidence that they understood that a federal court ordered them not to do what they did. They were being too clever by half.

[damikesc]

Again, "so what"?

[Jack Jordan]

You tell me why Saturday, and I'll tell you so what. You tell me why Trump failed to comply with Section 23 of the law he invoked, and I'll tell you so what. Why did Trump sign and publish his Proclamation Saturday and the same day rush people onto planes and fly them to a prison outside U.S. jurisdiction (El Salvador)?

[rloquitur]

That's not how it works. You cannot expect the Administration to ease the placing of roadblocks on getting rid of these criminals.

The order is embodied in the written words of the judge. As soon as the planes hit international waters, they were removed. Judges have no power to order the retrieval of someone who is without the US.

[David Nieporent]

Judges have the power to order the parties before them to act, regardless of where the act is to take place. "International waters" is utterly irrelevant.

[Bob from Ohio]

Oh noes, lawyer did their jobs.

[The Margrave of Azilia]

If Trump wants to disobey court orders, send him back to private life and let Vance take over.

[TwelveInchPianist]

Why? The power of the Presidency isn’t vested in the courts.

[Jack Jordan]

True but irrelevant. Article II (and Article VI) emphasized that we did not vest in the president any power to violate any law constitutionally enacted by Congress or any lawful order (constitutionally) issued by a court. We "vested in a President" the power to "take Care that the Laws be faithfully executed."

[Hugh]

Time for this judge to issue civil and criminal contempt orders against Trump's stormtroopers and Goebbels-wannabes.

86 47

[Dr. Ed 2]

The judge knows that the minute that he did that, Trump would issue pardons, which Trump could enforce with the full power of the US military, if necessary.

86 x 667

[John F. Carr]

Posse Comitatus, Sir.

[Jack Jordan]

If Trump committed criminal contempt of court, he should be ordered to jail. https://open.substack.com/pub/blackcollarcrime/p/should-trump-be-ordered-to-jail-for?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

[rloquitur]

Needs a court order served on him personally first.

[John F. Carr]

An order binds parties "who receive actual notice of it by personal service or otherwise". Federal Rule of Civil Procedure 65(d)(2). The judge ordered government lawyers to quickly spread the word. They can send an email or make a call instead of printing out a document and affixing a seal.

[rloquitur]

A stretch, lol

[not guilty]

"Needs a court order served on him personally first."

Is that as true as everything else you have said, rloquitur?

[not guilty]

"If Trump committed criminal contempt of court, he should be ordered to jail."

I hold no fondness for Donald Trump, but to be fair there is a question as to whether the judicial branch can entertain a suit for injunctive relief related to official duties against the President. See Mississippi v. Johnson, 71 U.S. 475 (1866).

[Jack Jordan]

Thank you for that authority. That's definitely an important question that needs to be adjudicated based on the controlling legal authorities and the material facts of each case. But I'm not inclined to trust any judgment or opinion of any justice who was such a fanatic for slavery that he joined in responsibility for the Dred Scott decision.

[TwelveInchPianist]

"Even if the TRO was indeed legally defective, the proper remedy was not to ignore it, but to obey and challenge it in court on appeal"

The claim is that any District Judge can order the President to exercise the executive power in any manner the judge wishes, and the President has to oblige? The power is vested in the president, not 667 District Judges.

[MollyGodiva]

Federal judges have the power to enforce federal law when the President is violating federal law. To accept your augment would to give the President the ability to ignore federal law at will.

[rloquitur]

Jurisdiction. Read up on it.

[Jack Jordan]

That's a fair point. Judges too often pretend that they have the power to issue unlawful orders which must be obeyed. Federal law clearly emphasizes otherwise.

As 18 U.S.C Section 401 provides, any federal court has the “power to punish by fine or imprisonment, or both” any “such contempt of its authority” as (but “none other” than) “Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” It is a defense that an order was unlawful. The government must prove beyond a reasonable doubt that the order was lawful.

BTW, two other offenses are included in Section 401, but they irrelevant here:

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; and(2) Misbehavior of any of its officers [judges and attorneys actually employed by the court] in their official transactions.

[David Nieporent]

The claim is that any District Judge can order the President to exercise the executive power in any manner the judge wishes, and the President has to oblige?

Unless an appellate court stays or reverses the order, yes.

The power is vested in the president, not 667 District Judges.

The judicial power is vested in 667 District Judges.

[Dr. Ed 2]

"ould add that, if courts accept the argument that the administration can do whatever it wants to people on aircraft over international waters, without any judicial scrutiny, that would have dire implications for civil liberties. The government could then put anyone it chooses to target - including US citizens - on a plane or helicopter, fly them over international waters before they have an opportunity to go to court, and then kill, injure, or torture at will. This theory, if taken seriously, would license abuses like the notorious "death flights" used by the 1976-83 Argentinian military dictatorship, which threw dissidents to their deaths from aircraft flying over the Atlantic."

Does Ilya remember why Club Gitmo was built?

And as to "Death Flights" -- that, sadly, IS a solution to this judicial overreach. "Your honor, we no longer have custody of these individuals."

[ScottK]

Does Dr. Ed 2 remember that Bush 2/Cheney invented an "enemy combatant" category to circumvent POW treatment for the Gitmo detainees? Or that hundreds of the so-called enemy combatants were repatriated without charges after finding they had been seized by bounty hunters looking for a quick buck?

[Jack Jordan]

Dr. Ed, do you really believe that murdering witnesses is a "solution" to "judicial overreach"? That would make everything you say highly suspect.

[David Nieporent]

That would make everything you say highly suspect.

What, his gleeful applause over the murder of sex workers wasn't enough for you?

[wmconnolley]

Relying on an oral command seems distinctly dodgy to me. In the days before voice-recording, we couldn't even be sure of what was said, beyond people's fallible memories.
And if voice is so great, why is the judge demanding *written* answers from the DoJ?

> Even if the TRO was indeed legally defective, the proper remedy was not to ignore it, but to obey and challenge it in court on appeal.

This also seems dodgy. You lawyer types give yourselves licence to issue broken orders, which must be obeyed no matter how broken?

[John F. Carr]

How broken was the order? There's "mistaken in hindsight" and then there's "ravings of a lunatic".

The Supreme Court said back in the 1960s that if you have a chance to appeal a court order and violate it instead you can still be convicted of contempt. Walker v. Birmingham. The justices observed "this is not a case where the injunction was transparently invalid or had only a frivolous pretense to validity." Civil rights protesters had been ordered not to march in the streets. Perhaps unconstitutional under the circumstances, but not frivolous. Cities can regulate traffic, including pedestrians.

The present deportation case is distinguishable from Walker because the government did not have time to challenge the order. Maybe – but not certainly – if the order is later ruled improper the government can avoid contempt on that basis. I think the D. C. Circuit will uphold the order.

[Drewski]

Courts employ reporters so nobody forgets exactly what is said. At any rate, there's no dispute about the content of the minute order so you're just grasping at straws. The judge required written responses because the DoJ refused or was unable to answer a lot of questions orally.

[rloquitur]

Um. recall that the judge undercut the oral order by saying there was nothing he could do once deportees were out of the country. And read the DOJ's brief--seems pretty clear.

Also, the judge should be impeached and removed from the bench for his whining that the government knew he was going to have a hearing at 5pm and hustled the planes in the air. So litigants are supposed to not do stuff because a judge is going to have a hearing. In a sane society, the DOJ's lawyers should have been able to say, "Judge, so what?"

[Jack Jordan]

rloquitur, you completely destroy your credibility (in virtually everything) by contending that a federal "judge should be impeached and removed from the bench for his whining that the government knew he was going to have a hearing at 5pm and hustled the planes in the air." What support (in our Constitution) can you offer for your contention?

[rloquitur]

Impeachment/removal is a political remedy. It doesn't matter what the reason is. This judge clearly expects litigants to anticipate orders and act without any order from him. That is completely antithetical to the rule of law, and haranguing lawyers (when they cannot tell him to go fuck himself) isn't "good Behavior" as far as I am concerned. Why should a free citizen have to put up with this sort of abusive behavior.

[Jack Jordan]

Again, rloquitur, you destroy your own credibility by contending that "Impeachment/removal is a political remedy. It doesn't matter what the reason is." What authority can you present to support either of your sentences?

Article II emphasized that "civil Officers of the United States" may and "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article III emphasized that all "Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour."

Article I emphasized that a prerequisite to "removal from Office" is an actual "Judgment" (not a mere vote) by the Senate in all "Cases of Impeachment." Regarding impeachment, the Senate is not a mere political body. See, e.g., The Federalist No. 81 ("the Senate" is "a court of impeachments").

[David Nieporent]

You lawyer types give yourselves licence to issue broken orders

No. Judges, not "lawyer types," get to issue orders.

[Commenter_XY]

Go to the written order itself. Is there anything about 'planes in the air at time of TRO'? The answer is no. Judge Biasberg did not address that in his written order.

I find it intriguing, the people like Prof Somin who are defending 'keeping' these criminal aliens in our country. With friends and neighbors like that...

These gangbangers are the dumbest of the worst of the worst (they were caught, after all; dumb move). There is no 'right' for illegal aliens to stay here. Gitmo or El Salvador, but do not let them back into CONUS.

[Drewski]

You're saying Congress does not have the authority to require litigants to obey minute orders? I think they do, and literally everyone in history agrees with me except members of the MAGA movement as of this week. That's why we keep calling you cultists: Your minds are so very malleable that you develop bizarre-but-strong beliefs overnight.

[Commenter_XY]

No, I said look at the text of Judge Biasberg's order. Go by the written words in the order. You won't find anything about flights or planes in the air. If I am wrong about that, cite it from his order.

The written responses from the DOJ to Judge Biasberg's questions, due by Noon today (3/18), should be illuminating. I will just note the DOJ has filed a motion with the Appeals Court to remove Biasberg from this case.

[Voodoo]

The writing says: "Defendants shall not remove any of the individual Plaintiffs from the United States for 14 days absent further Order of the Court." That's a broad directive, encompassing all manner of travel/removal. Are you suggesting some could be sent off even now via kayak, since the order does not specifically mention it?

[rloquitur]

Um, once outside of the country, they'd already been removed. No dice.

[Voodoo]

Admittedly, I have not done that analysis or digested the extensive analysis linked to in Somin's article. The extensive analysis suggests, however, that there might be some dice.

[rloquitur]

Not really, as the judge himself said that there was little he could do once they were out of the country. Technically, the Administration complied with the order, as they were removed once they hit international waters.

An order to turn the planes around on a Saturday evening is ridiculous. The Trump Administration could have said, gee, we just couldn't turn it around in time. I suspect the judge may have wanted to have his cake and eat it too. If the Admin had complied with the turnaround "order," the judge could have said that he didn't order them to do it because it was not in the written order.

[Life of Brian]

The extensive analysis suggests, however, that there might be some dice.

If you see ANY analysis, much less extensive, of the actual argument -- that you can't remove someone who has already been removed -- please point it out. I'd very much like to read it.

[Jack Jordan]

Brian, please see my more detailed analysis refuting the DOJ attorneys' misrepresentation about "already removed":
https://open.substack.com/pub/blackcollarcrime/p/on-saturday-did-the-us-remove-aliens?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

[Life of Brian]

I hate to be the one to break it to you, Jack, but "X is patently false" is not any sort of analysis at all, much less a "more detailed" one.

[Jack Jordan]

Brian, was that all you read? Did you read the copious analysis that I presented after that to prove my assertion? Did it not prove that the DOJ's representation was patently false? If not, please let me know where I fell short.

[Life of Brian]

Maybe you can do me a favor and point me to the rest of the language that you feel actually analyzes why someone who's already been removed from the US can somehow be removed again without reentering the US, continue to be removed, or something that actually takes on the government's quite straightforward argument. All I saw was some rhetoric about kidnapping and your Section 23 theory that I've already addressed and has nothing to do with the removal issue.

[Jack Jordan]

rloquitur, what makes you think they had "already been removed" instead of were in the process of being removed? Even the DOJ brief emphasized that the following:

The plain meaning of “remove” is “[t]he transfer or moving of a person or thing from one location, position, or residence to another.” Removal, Black’s Law Dictionary, at 1409 (9th ed. 2009).

A transfer can be a very long process. It is not completed by merely starting it. It is completed by completing it.

[Jack Jordan]

They could not (in a legal sense) be "removed" unless a court exercised "jurisdiction" to "order such alien to be removed." 50 U.S.C 23.

It seems to me that what happened to these people fell within the federal kidnapping statute. See 18 U.S.C. 1201: "Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person."

[Jack Jordan]

rloquitur, please see my more detailed analysis refuting the DOJ attorneys' misrepresentation about "already removed":
https://open.substack.com/pub/blackcollarcrime/p/on-saturday-did-the-us-remove-aliens?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

[Commenter_XY]

The 5 individual plaintiffs (illegal aliens) were not removed from the US. They currently sit in detention, waiting for their illegal, criminal asses to be shipped out. Can't happen soon enough.

What's the problem? The order was complied with.

As for declaring an entire class of illegal aliens as 'undeportable' subject to the whim of the Court, that is in dispute.

[Michael Ejercito]

Have you evewr heard of the concept of malicious compliance?

[MollyGodiva]

This is a fascist circular argument. They do not deserve a due process hearing on their eligibility for deportation because of their status of being a criminal, despite the due process hearing is what determines that and prevents the rest of us from getting deported as well.

[rloquitur]

They were already deported. Whatever due process rights they had evaporated.

[Jack Jordan]

rloquitur, what makes you think they were "already deported" instead of were in the process of being deported? Even the DOJ brief emphasized that the following:

The plain meaning of “remove” is “[t]he transfer or moving of a person or thing from one location, position, or residence to another.” Removal, Black’s Law Dictionary, at 1409 (9th ed. 2009).

A transfer can be a very long process. It is not completed by merely starting it. It is completed by completing it.

[MollyGodiva]

The process for deportation was completed when they were released from US custody to another country and outside the US.

[rloquitur]

Were they outside US territory? Yep. Removed!

[David Nieporent]

No. They were on American planes.

[Jack Jordan]

rloquitur, please see my more detailed analysis refuting the DOJ attorneys' misrepresentation about "already removed":
https://open.substack.com/pub/blackcollarcrime/p/on-saturday-did-the-us-remove-aliens?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

[Jack Jordan]

rloquitur, the president issued his proclamation on Saturday and the same day rushed people onto airplanes to fly them to a prison in El Salvador and then had "his" DOJ attorneys argue to a federal judge that the president already "proclaimed" that all these people were foreign citizens, in the U.S. illegally and members of a criminal gang that was a "hybrid criminal state" and they're already in the air, so you have no jurisdiction. So if you were on that plane and now in an El Salvadoran prison, would any federal judge have jurisdiction? If so, how would anyone know? Who would know that you were on that plane or in that prison?

[rloquitur]

I am a citizen. A judge has no power to order the government to admit an alien.

[David Nieporent]

You claim you're a citizen.

[Jack Jordan]

rloquitur, you did not answer any of my questions:

if you were on that plane [on Saturday] and now in an El Salvadoran prison, would any federal judge have jurisdiction? If so, how would anyone know? Who would know that you were on that plane or in that prison?

[Bob from Ohio]

fascist!

[Brett Bellmore]

"They used the Act to deport some 137 Venezuelan migrants to El Salvador even after a federal court issued a temporary restraining order blocking such action."

A nitpick: You're not deported when you arrive home. You're deported when you're kicked out of this country.

So, by your own timeline, the passengers of the first two planes had already been deported by the time the order was issued.

[Michael Ejercito]

Very good point.

[rloquitur]

That's one of the arguments that the Administration is using. Plus, also, this arrogant dipshit undercut the oral order by saying that once they're out of the country, there's nothing he can do. Dumbass. (I am referring to the judge here.)

[Jack Jordan]

rloquitur, I don't understand the logic of an argument that, first, an order issued from the bench isn't binding but, second, a statement about such order is binding. Can you explain to me how that works?

It is (or should be) quite clear that the D.C. District Court (Judge Boasberg) now does have jurisdiction to do at least one thing: adjudicate whether somebody in D.C. is guilty of criminal contempt of court. The point at this point (as the judge's questions clarified) is to ascertain who did what when here on the ground in the U.S.

[not guilty]

Judge Boasberg has ordered that by noon today:

the Government shall file a Notice, which may, if necessary, be sealed in part, setting forth: 1) A sworn declaration that no one on any flight departing the United States after 7:25 p.m. on March 15, 2025, was removed solely on the basis of the Proclamation at issue; 2) A sworn declaration setting forth when the Proclamation at issue was signed, when it was made public, and when it went into effect; 3) The Government's best estimate of the number of individuals subject to the Proclamation currently remaining in the United States and how many are currently in U.S. custody; and 4) The Government's position on whether, and in what form, it will provide answers to the Court's questions regarding the particulars of the flights. Such form could include in camera review or in a classified setting. If the Government takes the position that it will not provide that information to the Court under any circumstances, it must support such position, including with classified authorities if necessary.

Another hearing is set for Friday at 2:30 p.m.
https://www.courtlistener.com/docket/69741724/jgg-v-trump/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc#minute-entry-419399702

It will be interesting to see what the DOJ response will be, including whether any official(s) will invoke his/her constitutional privilege against self-incrimination.

[Jack Jordan]

Brett, the question right now is not whether or when anyone was "deported," but whether anyone on Saturday was (as the DOJ misrepresented) already "removed" as provided in "the Alien Enemies Act." The relevant section is 50 U.S.C. 23.
See https://open.substack.com/pub/blackcollarcrime/p/on-saturday-did-the-us-remove-aliens?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

[Dan Schiavetta]

Once more, an act that would have seemed like an eye-rolling law school hypothetical ten years ago, when actually done by Trump, creates an army of defenders.

[rloquitur]

What did the Administration do wrong? The oral order was undercut by the judge because he said that there was nothing he could do once the deportees were out of the country. Second, there's that pesky caselaw about the necessity of court orders to be in writing.

[John F. Carr]

We've had civil contempt in the Cabinet before. Cobell v. Babbitt, the lawsuit over Indian trust funds. Criminal contempt would be new.

[PaulS]

Since the non citizen individuals were sent to a foreign country subject to an agreement with that country - does blocking the President from fulfilling that agreement impinge on his established right to conduct foreign policy? While somewhat absurd in this case, where is the line that the courts want to draw? How deeply do they want to get into such agreements? If a lawyer filed an objection would they want to allow review (delay) of an agreement with Hamas? That would return an American citizen?

[MollyGodiva]

This case has nothing to do with foreign policy. This is about the ability of Trump to deport people without due (or any) process in violation of federal law.

[rloquitur]

Well, it does since El Salvador is involved. How dispositive that it is? On open question.

[Jack Jordan]

rloquitur, how does merely contracting with a prison in El Salvador to house people constitute "foreign policy"? Where is any statement of any policy at play?

[rloquitur]

Foreign relations.

[jimc5499]

Bullshit. When has there been a determination that non-citizens, especially ones that are in the Country illegally, have the protection of the Constitution? There hasn't been one.

[MollyGodiva]

Plyler v. Doe

"Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory."

[rloquitur]

One of the most BS decisions EVER to come from SCOTUS.

[MollyGodiva]

No. It is one of the best. It clearly stated that everyone is protected by the Constitution. It is a strong statement upholding equal protection under the law.

A country is judged not on how we treat those who we like, but how we treat those we don't like.

It was a ruling that made me proud to be and American and defend the rights of those who deserve them the least.

[Jack Jordan]

jimc5499 the determination you seek was made by We the People and it is documented in our Constitution (at least twice).

"No person" (citizen or not) may "be deprived" by any federal official "of life" or any "liberty" or any "property" until after being afforded all "due process of law." Amendment V .

"No State" has any power to "deprive any person" (citizen or not) "of life" or any "liberty" or any "property" until after being afforded all "due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It also was documented in the very law that Trump and the DOJ repeatedly invoked (the Alien Enemies Act) See https://open.substack.com/pub/blackcollarcrime/p/on-saturday-did-the-us-remove-aliens?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

[Jack Jordan]

PaulS, not being pedantic, but merely ensuring that we actually apply (and federal officials comply with) the controlling legal standards.

Public servants do not have any "right" to take any official action. Our Constitution repeatedly emphasized that federal public servants have only certain limited "powers" that We the People "vested in" them. See Section 1 of Articles I, II, III. The Tenth Amendment re-emphasized that federal public servants have only the limited "powers" that We the People actually "delegated to the United States by the Constitution."

Article II emphasizes that the president has no powers other than those necessary to "preserve, protect and defend the Constitution of the United States," including specifically by "tak[ing] Care that the Laws be faithfully executed."

No vague allusion to "foreign policy" permits Trump to trump what Article VI emphasized is "the supreme Law of the Land."

There's no need to get into the weeds you inquired about. The conduct (and violations of law by Trump and his co-conspirators) is clear. See https://open.substack.com/pub/blackcollarcrime/p/on-saturday-did-the-us-remove-aliens?r=30ufvh&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false

[Jack Jordan]

If Trump is guilty of contempt of court, Judge Boasberg should order Trump to jail. Trump won't go, so there will be no harm in such an order. But then this issue can be raised up to SCOTUS so they can reconsider their absurdly unconstitutional "judgment" that We the People somehow made the president immune from criminal prosecution for criminal abuses and usurpations of power.

As Article VI emphasized, our "Constitution" and federal "Laws" are "the supreme Law of the Land; and [all] Judges in every State" are "bound thereby." As Article III emphasized, ALL federal "judicial Power" including the power "vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" can "extend" no further than permitted "under this Constitution," federal "Laws" and "Treaties."

As Article II emphasized, the people "vested in a President" ONLY such power as is necessary and proper to "preserve, protect and defend" our "Constitution" to "the best of" the president's "Ability," including by "tak[ing] Care that the Laws be faithfully executed."

Article II further emphasized that "The President" and "Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, any "high Crimes" or high "Misdemeanors." Article I emphasized that We the People "vested in" Congress "All legislative Powers" to "make all Laws" that are "necessary and proper for carrying into Execution" absolutely "all" the "Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Nothing about any of the foregoing (the plain text or the plain meaning or the plain purpose) of our Constitution indicated that We the People delegated power to the president to commit conduct that Congress (and a prior president) made criminal to protect us from abuses and usurpations of power by every public servant.

Nothing about any of the foregoing (the plain text or the plain meaning or the plain purpose) of our Constitution indicated that We the People delegated power to six SCOTUS justices to declare that the president somehow had immunity from prosecution for crimes committed that fell within the scope of impeachable conduct.

[Jack Jordan]

As Article I emphasized, the point of impeachment by the House and conviction by the Senate is that the president can be subjected to "removal from Office" and then "be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law" for any high Crimes or high Misdemeanors (by a jury of his and our peers).

Anybody who wants to see what Congress determined was a high misdemeanor can see Section 1 of the Sedition Act of 1798 (which was enacted at the same time as the law that Trump has invoked). See https://www.archives.gov/milestone-documents/alien-and-sedition-acts

[rloquitur]

Were you always this stupid, or did you have to work at it. Trump wasn't served with the order.

[Jack Jordan]

Settle down, rloquitur, and speak for yourself. I prominently accentuated that I was not arguing that Trump did commit criminal contempt of court. My first word was "if."

I'm writing about the controlling law, not the material facts. I showed you what I think is the controlling law. Please do the same. Please show us why you think it is material that "Trump wasn't served with the order."

Speaking of material facts, do you actually know what Trump knew about that order?

[rloquitur]

"If Trump is guilty of contempt of court, Judge Boasberg should order Trump to jail."

I was more focused on the second clause.

Service of process requires personal service.

[not guilty]

Personal service of a restraining order or injunction is not necessarily required for someone who has actual notice thereof to be bound thereby. Fed.R.Civ.P. 65(d)(2) states expressly:

(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:

(A) the parties;

(B) the parties’ officers, agents, servants, employees, and attorneys; and

(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

[rloquitur]

Ha ha. Prove Trump read the order.

[David Nieporent]

Um, he ranted and raved about it on TruthSocial.

[Jack Jordan]

"not guilty" thank you for repeatedly trying to bring some actual logic and some actual law to bear.

[Jack Jordan]

rloquitur, so much of what you have said today in this thread is so wildly (and so obviously) false that I respectfully request that you kindly show us how the law gets you to where you want to be.

[wnoise]

> Trump won't go, so there will be no harm in such an order.

The harm is precisely that he won't go, thus weakening the courts' real and perceived powers.

[Swede425]

I know the midterms are a little ways off, but I think this is a great argument and Dems should totally run on this.
People are obviously quite angry with Trump for deporting illegal alien gang members. I mean, really, who the fuck does this guy think he is? I think you guys got him THIS time!

[Commenter_XY]

I know, unreal. It's like: Go ahead, defend bringing back the illegal alien gangbangers who rape, loot, molest and murder American citizens and whose gang is allied with Maduro.

By all means, please run on that. And while you're at it, run on bringing men back into women's sports, too. And coddling hamas homies and harpies in our 'elite' universities.

[Swede425]

What I'm REALLY excited to see is how our new president and Commander In Chief, US District Judge James Boasberg, is going to prosecute this military action against the Houthis!
Maybe he'll recall the bombs that've been dropped.

[MollyGodiva]

It would be a great honor of the rule of law and due process for the Ds to demand the return of those illegally deported. Horrible politics but very much the right thing to do.

[rloquitur]

Yeah right. Courts have no right to tell the government to let an alien back in the country.

[Commenter_XY]

You suffer from moral inversion. We are supposed to protect Americans from criminal illegal aliens, not aid in their victimization.

[MollyGodiva]

Above all we are are to defend the Constitution and civil rights. There is no conflict between protecting Americans from criminal illegal aliens and due process.

[Longtobefree]

How will the democrats phrase this?
Vote for us so some judge you did not vote for can run your life?

[MollyGodiva]

The Ds frame the issue as preserving our core values of equal protection under the law. Rights that are eroded for one disfavored group risks those rights for all. I stand proud to defend the rights of those who deserve them the least.

[Michael Ejercito]

Were not the specific persons in question already deported?

[Jmaie]

We heard you the first time...

[SRG2]

As predicted, the defence is raised, "The deportees were members of a drug gang so who cares"

We do not know this to be true. We have the Executive's say-so that they were all drug gang members.. But you cultists believe inn the Fuhrerprinzip.

[Michael Ejercito]

Have you heard about the concept of malicious compliance?

[Sarcastr0]

Naw, this is straight noncompliance.

[Commenter_XY]

Prove it.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Listen, don't you get it? Sarcastr0 is not to be demanded of proof, he is the who demands it from others.

His beliefs and positions don't need any material support, only yours. And the support you need to a really high standard that he defines on the fly after each of your responses.

[Life of Brian]

Sarc apparently has "foot voted" his way back to the relative safety of the open thread now that the actual facts on the ground here have become a bit too inconvenient for even him to pretend to ignore.

[SRG2]

Yes. Have you heard about due process, and separation of powers?

[Commenter_XY]

Yes, Congress defined the process in the Alien Enemies Act. The Congress also defined the limits of the role of the judiciary relative to AEA.

[SRG2]

The Congress also defined the limits of the role of the judiciary relative to AEA.

i..e., in answer to my question, you haven't heard about separation of powers. Nor, it seems, of constitutional rights.

[Commenter_XY]

What bothers you, SEG2, is the 'other team' is effectively using every legal tool available to deliver on their promises.

Here is section 22 of AEA;
§22. Time allowed to settle affairs and depart
When an alien who becomes liable as an enemy, in the manner prescribed in section 21 of this title, is not chargeable with actual hostility, or other crime against the public safety, he shall be allowed, for the recovery, disposal, and removal of his goods and effects, and for his departure, the full time which is or shall be stipulated by any treaty then in force between the United States and the hostile nation or government of which he is a native citizen, denizen, or subject; and where no such treaty exists, or is in force, the President may ascertain and declare such reasonable time as may be consistent with the public safety, and according to the dictates of humanity and national hospitality.

I didn't write the law. John Adams did.

[Jack Jordan]

Thank you, Commenter_XY, for bringing some law into this discussion!

Would you happen to know if any relevant "treaty" now is "in force"? If so, would you happen to know what it says regarding this issue? If not, did "the President" comply with this law and actually do something to "ascertain" and then "declare such reasonable time as may be consistent with the public safety"? What "public safety" concern compelled issuing the president's proclamation on Saturday and the same day rushing people onto airplanes to fly them to a prison in El Salvador?

To your assertion that "John Adams" wrote "the law" you quoted, that's not quite right. They law you quoted was a much later version. The law signed by President Adams and Vice President Jefferson said something very different from what the current administration did. See https://www.archives.gov/milestone-documents/alien-and-sedition-acts.

Current law also says something very different from what the current administration did regarding due process of law. See 50 U.S.C. 23:

After any such proclamation has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

[SRG2]

You're not supposed to ask those questions. Trump has decided, and his word is law, according to XY et al.

[SRG2]

"hostile nation or government of which he is a native citizen"

And do youm,think Trump complied with all the other conditions?

Further, you're still not getting the constitutional issues.

[Bob from Ohio]

Fuhrerprinzip!

Maybe you will make a comparison one day to someone other than Nazis. Nazi comparisons undercut your argument.

[SRG2]

Fuhrerprinzip is an accurate term and is not restricted to Hitler.

I don't often make comparison to Nazis, but when followers of a wannabe dictator approve of his actions in ways that are reminiscent of how 1930s Germans followed Hitler early on, the comparison is not entirely meritless.

But perhaps I should be comparing Trump and his supporters to other dictators and their followers. Find me an historical example of a democratically elected head who tried to assume dictatorial powers with such rapidity, and with such unquestioning support from his followers, and I'll use that exmaple. Note: if you say "Biden", I'll know you're just being a fuckwit.

[Bob from Ohio]

Carry on then.

[SRG2]

No other example being provided, this suggests you have none.

[David Nieporent]

Maybe one day Trump will stop acting like Hitler.

[rloquitur]

This judge, to put it mildly, is an arrogant dipshit. First of all, he's whining that the Trump Administration knew that there was a hearing and that it rushed to get the planes off the ground. Sorry, your honor, that doesn't pass the "so what?" test. Second, the judge when giving his oral "order" also said that he had no power once the deportees were out of the country--in other words, the dumb-ass undercut his own order. Third, he, like Ilya, ignores the case law cited by the Administration.

The Truimp Administration could have easily said, "Hey your honor, we couldn't get a hold of people in time, blah blah blah." The judge has gotten himself into a bind because the "turn the planes around" is the height of judicial arrogance.

[Life of Brian]

Administration lawyers have claimed the judge's order wasn't binding with respect to the men on these planes because the planes were over international waters. This argument is risibly weak.

Somewhat coincidentally, it also isn't what they argued, which you would know if you actually bothered to read the briefing rather than hot media mis-takes.

The actual argument, staring at the middle of page 3, is that once the planes exited U.S. airspace, the gang members by definition had been removed from the United States, and thus continued extraterritorial flight with those individuals by definition could not violate the court's written order that "Defendants shall not remove any of the individual Plaintiffs from the United States."

In fact, Judge Boasberg appears to have come around on this point, given his most recent minute order for DOJ to provide "A sworn declaration that no one on any flight departing the United States after 7:25 p.m. on March 15, 2025, was removed solely on the basis of the Proclamation at issue."

But why let pesky facts and inconvenient law get in the way of a good screeching fit about people who have the temerity to pretend borders still exist and matter?

[rloquitur]

Yep, and the judge himself said that there's little he could do once they were out of the country.

[David Nieporent]

If you repeat this ten more times, it won't be any less asinine.

[Stephen Lathrop]

Life of Brian — The defendants remain in the U.S. to this minute. Some of them will be in Judge Boasberg's court within hours, unless they choose further defiance. If so, the Judge should order them arrested, and brought before him immediately.

[rloquitur]

How's he gonna do that? The order has to actually be served on a real person. The lawyers aren't responsible. F this idiot judge. He put himself in a box--now he's whining that the planes took off before he could get his precious order out. Um, judge, so what?

[Life of Brian]

Was that directed at anything in particular that I said, or did you just need to get it off your chest?

If the former, you might expand on what bearing you think the defendants' presence in the U.S. has on the point I was making about the (not-yet) plaintiffs' removal from the U.S. For bonus points, you might try tying it to the language of the injunction.

[Stephen Lathrop]

Did I jump the gun there, with, "dedendants?" Let's wait till later today, and see what happens.

[rloquitur]

This is not a fight that will be won by the judge. He is going to be humiliated.

[Life of Brian]

Did I jump the gun there, with, "dedendants?"

Again, my Lathrop-to-English translator is currently out for repairs. Were I to hazard a guess, I'd say you're just taking contempt as a given. But the actual law and facts point squarely in the opposite direction as I've specifically pointed out, and you're not even trying to grapple with that minor inconvenience.

[Stephen Lathrop]

As so often, the misuse of, "pointed out," serves as a conspicuous field mark to spotlight MAGA critical flaws.

[Life of Brian]

Sincere question: is there anyone in your orbit (live or online -- take your pick) that finds your take on debate particularly effective or compelling? 3 posts now, and you've still said precisely nothing of substance on the points I raised in my original post.

[Stephen Lathrop]

Life of Brian — Your points are nonsense, absent proof to show this nation is at war. With that as predicate, and no war in sight, why waste time trying to persuade you out of arguments which amount to MAGA apologies.

[Life of Brian]

OK, so you really did just weigh in to hear yourself talk. Got it. I'll save us both a ton of time going forward and just let you emote.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

That would be a real blessing. Let's hope and pray this judge escalates the conflict to that degree.

[Commenter_XY]

lathrop, I agree. Your legal commentary is just....spellbinding! Judge Biasberg should immediately conduct a bench trial for criminal contempt. By all means: Go for it. And for good measure, Judge Biasberg should invoke civil contempt for all the DOJ lawyers involved with this case and send them to jail for life, until they recant and say they are really, really sorry.

And if all that doesn't work, Judge Biasberg should just walk over to the White House and drag away POTUS Trump in handcuffs. I suppose VP Vance will be much more likely to comply.

[Jack Jordan]

"Brian," speaking of inconvenient law. Please note what the law says about due process of law, including who has the power to order removal and why. See 50 U.S.C. 23:

After any such proclamation [by the president] has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

[Life of Brian]

This shows the danger of dropping into a statute in the middle. The language you're quoting is permissive, not exclusive, and to my knowledge has not been raised in this case. Maybe you can reach out and share your find with the gangsters' legal team!

Rewind to Section 21 for the President's authority to remove -- which, on the other hand, has been extensively argued in the briefing from the get-go:

The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

[Jack Jordan]

Think of that power as analogous to a war power (which it expressly is). There are no circumstances that make the conduct on Saturday necessary. No suddenly-attacking sizeable invasion or predatory incursion force was on or threating to arrive on U.S. soil. Trump expressly invoked a war power to address, at most, mere violations of immigration laws by (less than 200?) people he merely implied were mere "members" of a criminal gang who were at least 14 years old. Trump expressly purported to address routine crime and routine law enforcement issues. Nothing in the statute (or our Constitution) authorized war powers to wage war on crime. For Trump's express and demonstrated purposes on Saturday, March 15, Trump was required to afford the due process in Section 23.

[Life of Brian]

I think you have to declare a major. Whether this was an appropriate invocation of the AEA is of course going to be vigorously litigated. But if it isn't and thus the AEA doesn't apply, then of course Section 23 doesn't come into play at all.

[Jack Jordan]

Brian, thank you for some of your comments and objections. They helped me realize that I needed to be more clear about what I was saying and why. So I revised what I wrote, including to add the following:

Trump’s attacks on our Constitution are reminders of Alexander Hamilton’s warning. In The Federalist No. 84, Hamilton emphasized that due process of law was crucial to our Constitution and our liberty. Hamilton quoted Blackstone, the great authority on English law:

the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone, in reference to [arbitrary imprisonments], are well worthy of recital: “To bereave a man of life, (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”

[rloquitur]

Where were all these people when Obama offed a 16 year old American citizen?

No matter what--I bet TdA people are thinking twice about coming here.

[Bob from Ohio]

"I bet TdA people are thinking twice"

The whole point of this exercise. Send them to a real prison, not US detention.

[Magister]

But also a bunch of non-TdA people, including some US citizens, are thinking twice about being here.

[Brett Bellmore]

And I hope an awful lot of non-TdA people who are here illegally are thinking twice about being here. The citizens worried about it, OTOH, are just nuts.

[Magister]

You have no way of knowing whether they've already deported citizens or will do so tomorrow. Hispanic citizens do get harassed from the assumption that they are illegal. Better hone your Trump worship if you don't want to be one of the deportees.

[David Nieporent]

The citizens worried about it, OTOH, are just nuts.

Why? Without due process, how does one establish that one is a citizen who can't be deported?

[Brett Bellmore]

And, indeed, this is why even the worst scum of the earth should get at least the bit of due process necessary for them to claim to be a citizen, and then provide proof if they so claim. I have no reason to suppose they were denied that tiny bit of due process, but if it develops that they were, THEN we will have a problem.

The reason the citizens claiming to be worried about it are nuts, is that they're for reasons of ideological mania assuming the administration wants to deport citizens.

[Jack Jordan]

Brett, plenty of people are talking about impeaching judges for, as far as I can tell, doing nothing more than trying to ensure Trump and his administration don't violate the rights of citizens. So there's good reason to worry about what a president who (at least thinks he) cannot be prosecuted for criminal violations of people's rights is doing--or might do next or next or next.

[Stephen Lathrop]

What a mess, as the commentary above makes clear. Whose mess is it? My pick is Chief Justice Roberts. His Trump immunity decision seems the fount of this chaos.

A judicial system incapable to command obedience from the government has ceased to function. That is a crisis, and an emergency for the nation. I think it calls for emergency action by Roberts—probably unprecedented action. Roberts should convene the Court for the purpose to revisit and overturn the Trump immunity decision, as wrongly decided, without waiting for a case to complicate the question.

Do it this week. It is time to at least notice that a rogue administration is racing to overturn American constitutionalism, with evident intent to get the job done before countervailing force can put a stop to the attempt. The more time passes, the less effect an effort to thwart this ongoing coup can be expected to have.

[rloquitur]

Wow. You are unhinged.

(1) Judge's oral order. He undercut it by saying that there was little he could do. So there could have been genuine confusion about that. That's on the judge.

(2) Judge's written order. They had already been removed.

(3) The Admin could have easily taken the position that the order came too late, etc. But it didn't.

The Court is in a box.

[Jack Jordan]

Trump boxed himself in. Please note what the law says about due process of law, including who has the power to order removal and when and why. Hint: it's not anyone in the executive branch, it's not based solely on any mere presidential "proclamation," and it's not on a weekend the same day the president issued his "proclamation." See 50 U.S.C. 23:

After any such proclamation [by the president] has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

[rloquitur]

Hmmm. I sure don't remember that court decisions were a pre-requisite to the internment of Nisei.

[David Nieporent]

You know that Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—has no place in law under the Constitution, right?

[David Nieporent]

He undercut it by saying that there was little he could do.

Nope; you actually do get stupider and more of a waste of oxygen every time you post this.

[rloquitur]

https://www.nytimes.com/live/2025/03/18/us/trump-president-news#trump-venezuela-deportations-doj-court-order

Latest

[Life of Brian]

Ah, thanks. In this piece, the entire garment-rending, wailing routine about contempt appears to have pretty much died down (take notes, Lathrop!), other than a bit of ominous muttering about the administration trying to hide additional flights that departed the US after the written injunction, which I've not seen anyone even try to support and in any event should be squarely addressed by the upcoming DOJ declaration.

[Life of Brian]

And lo, here it is, with the sort of straightforward and crystal clear language I strongly suspected:

On March 15, 2025, after the Proclamation was publicly posted and took effect, three planes carrying aliens departed the United States for El Salvador International Airport (SAL). Two of those planes departed U.S. territory and airspace before 7:25 PM EDT. The third plane departed after that time, but all individuals on that third plane had Title 8 final removal orders and thus were not removed solely on the basis of the Proclamation at issue. To avoid any doubt, no one on any flight departing the United States after 7:25 PM EDT on March 15, 2025, was removed solely on the basis of the Proclamation at issue.

[Jack Jordan]

But was any removal supported by any court order? Please note what the law says about due process of law after the president issues his proclamation, including who has the power to order removal and why. See 50 U.S.C. 23:

After any such proclamation [by the president] has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

[Life of Brian]

Spraying the same wall of irrelevant statutory language all over the discussion doesn't suddenly transform it into a sage legal point. See my response to one of the other instances.

I haven't seen you around here before and was giving you the benefit of the doubt, but I have to say this is starting to feel pretty trollish.

[Stephen Lathrop]

Statutes? . . . We don't need no steenking statutes!

[Jack Jordan]

Brian, for some reason you want the president to be able to have and use war powers for something that clearly is not a war or anything close to anything any rational person would think of as a war. You think he should be able to say, essentially, "illegal immigration" is an invasion, so I have war powers. How does that make any sense?

There are no circumstances that make the conduct on Saturday necessary. No suddenly-attacking sizeable invasion or predatory incursion force was on or threating to arrive on U.S. soil. Trump expressly invoked a war power to address, at most, mere violations of immigration laws by (less than 200?) people he merely implied were mere "members" of a criminal gang who were at least 14 years old. Trump expressly purported to address routine crime and routine law enforcement issues. Nothing in the statute (or our Constitution) authorized war powers to wage war on crime. For Trump's express and demonstrated purposes on Saturday, March 15, Trump was required to afford the due process in Section 23.

[Jack Jordan]

Brian, according to the declaration by ICE that was submitted by the DOJ, Trump's Proclamation (vaguely proclaiming an "invasion" or "predatory incursion") was posted at about 4:00 p.m. Saturday, So ICE (not the military) is addressing this so-called invasion or predatory incursion.

How is ICE defending us against this so-called invasion or predatory incursion? Within about 3 1/2 hours ICE immediately hustled an unspecified number of people onto three airplanes to be flown out of U.S. jurisdiction. Less than 200 people on those planes? Another approximately 250 people are potential deportees, according to ICE's declaration.

Nothing in ICE's declaration leads me to believe that the U.S. actually is being attacked in an "invasion" or "predatory incursion" that could justify the lack of process on Saturday.

[Life of Brian]

Which, as I just replied in another of your whack-a-mole threads, has squat to do with your original silly argument about the Section 23 judicial process being the only path to removal.

Like Lathrop, you seem to be just generally unhappy about the situation and are airing your angst by flexing your fingers. All good. But I would gently suggest you need to stop pretending you're actually performing legal analysis.

[Jack Jordan]

Brian, I provided a link to my analysis. Your objections helped me realize that I needed to clarify my analysis. Neither you nor anyone else has provided any material fact or analysis of legal authority that shows that Trump did not clearly violate the law that he invoked (and our Constitution). The facts that even Trump's people made available (with the ICE declaration) showed that Trump invoked broad, secretive war powers (based on vague, sweeping conclusory contentions and even mere implications) for no better reason than to evade due process of law for routine criminal matters. Please feel free to try to show otherwise. Please also help me understand why anyone should accept at face value the conclusory contentions by a Trump (in his mere Proclamation). He has demolished his own credibility by demonstrating for years that he commonly treats actual facts and truth (and federal laws and our Constitution) as irrelevant except to the extent that they might serve his purposes.

[Brett Bellmore]

And lo, here it REALLY is.

"NOTICE IN RESPONSE TO COURT ORDER
In yesterday’s 6:47 PM minute order, the Court ordered the Government to provide a sworn declaration on two points: the timing of the Proclamation and the fact that no individual removable under the Proclamation was removed from the United States after the Court’s order at 7:25 PM EDT on March 15, 2025. That declaration is attached. The declaration also addresses a third issue the Court inquired about: estimates as to the number of individuals subject to the Proclamation.

The Court also ordered the Government to address the form in which it can provide further details about flights that left the United States before 7:25 PM. The Government maintains that there is no justification to order the provision of additional information, and that doing so would be inappropriate, because even accepting Plaintiffs’ account of the facts, there was no violation of the Court’s written order (since the relevant flights left U.S. airspace, and so their occupants were “removed,” before the order issued), and the Court’s earlier oral statements were not independently enforceable as injunctions. The Government stands on those arguments. Moreover, given that the Government’s motion for a stay remains pending before the D.C. Circuit, the Government should not be required to disclose sensitive information bearing on national security and foreign relations until that motion is resolved, especially given that this information is neither material nor time sensitive. If, however, the Court nevertheless orders the Government to provide additional details, the Court should do so through an in camera and ex parte declaration, in order to protect sensitive information bearing on foreign relations. "

[Jack Jordan]

Brett, thank you for that link. Trump's Proclamation was posted at about 4:00 p.m. Saturday vaguely proclaiming an "invasion" or "predatory incursion." ICE (not the military) is addressing this so-called invasion or predatory incursion. Within about 3 1/2 hours ICE immediately hustled an unspecified number of people onto three airplanes to be flown out of U.S. jurisdiction. Less than 200 people on those planes? Another approximately 250 people are potential deportees. That doesn't sound to me like any kind of emergency "invasion" or "predatory incursion" that could justify the lack of process on Saturday.

[Life of Brian]

Ah, thanks -- missed that my link got butchered somehow.

[rloquitur]

All the anti-Trump people should focus on the ball. The Trump Admin. picked this fight. They easily could have said that it was Saturday evening, that they couldn't get a hold of people, sorry, Judge. But they didn't. They chose an in your face route. Why? Because they want to rein in the federal judiciary. This order (turn around the planes) is a caricature of an out of control federal judge who doesn't understand reality. And now the appellate courts are going to have to deal with this.

Trump has a winning hand.

[Jack Jordan]

rloquitur, you think Trump has a winning hand because he plainly violated the law he pretended to enforce? Please note what the law says about due process of law after the president issues his proclamation, including who has the power to order removal and why. Trump can't "win" (and America doesn't win) by Trump issuing his proclamation on a Saturday and the same day rushing people onto airplanes to be flown to a prison in El Salvador. See 50 U.S.C. 23:

After any such proclamation [by the president] has been made, the several courts of the United States, having criminal jurisdiction, and the several justices and judges of the courts of the United States, are authorized and it shall be their duty, upon complaint against any alien enemy resident and at large within such jurisdiction or district, to the danger of the public peace or safety, and contrary to the tenor or intent of such proclamation, or other regulations which the President may have established, to cause such alien to be duly apprehended and conveyed before such court, judge, or justice; and after a full examination and hearing on such complaint, and sufficient cause appearing, to order such alien to be removed out of the territory of the United States, or to give sureties for his good behavior, or to be otherwise restrained, conformably to the proclamation or regulations established as aforesaid, and to imprison, or otherwise secure such alien, until the order which may be so made shall be performed.

[rloquitur]

Hmmm. I don't think this language has the effect you think it does. I don't recall all the Nisei getting their day in court until after internment.

[David Nieporent]

Why don't you cite Dred Scott as a precedent for not letting black people vote, while you're at it?

[Jack Jordan]

rloquitur, those were vastly different circumstances during a declared war in which the U.S. was actually attacked in a discrete predatory incursion by a massive armed force (December 7) and the U.S. was at least dealing with a huge number of purported potential alien enemies. Here, Trump is expressly addressing mere violations of immigration laws by people purportedly merely "members" of a criminal gang who numbered (on Saturday) less than 200, right?

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Turns out the Judge Boasbergs daughter works for a 501c3 called "Partners For Justice" that gives criminal illegals and gang members free legal advice.

Why does this keep happening? These controversial hyper-partisan judges have families with "skin in the game" on the issues before them.

It's so bizarre.

[rloquitur]

Ha ha. See my above post. Trump has a winning hand here. Roberts is going to cry uncle.

[David Nieporent]

Turns out the Judge Boasbergs daughter works for a 501c3 called "Partners For Justice" that gives criminal illegals and gang members free legal advice.

It does not in fact "turn out" that way. Why do MAGA people lie all the time? You know who gives legal advice? Lawyers.

Why does this keep happening? These controversial hyper-partisan judges have families with "skin in the game" on the issues before them.

That would not in fact be "skin in the game" anyway.

[Bob from Ohio]

The judge wanted this fight, he was reportedly not the duty judge Saturday, but as Chief Judge he choose to assign it.

He can now strut and get lefty seals applauding. Mission accomplished!

[rloquitur]

Oh I agree that the judge wants this fight--problem is that he's going to lose it.

[M L]

Interesting little tiff. For context, the open borders globalists couldn't care less about democracy or the rule of law. They decided there wasn't enough immigration, so they let in millions of illegal immigrants, including violent gangs, because that serves their ends. Now they are waging lawfare to keep them all here. What the law is or what the American people think or want or vote for doesn't matter at all to them.

[David Nieporent]

How many times did your mother drop you on your head as a baby?

[Jack Jordan]

I definitely am not trying to keep any violent gang or violent gang member in the U.S. I'm trying to ensure that only the kind of people that Trump proclaimed he was targeting (at least 14 years old, Venezuelan citizen, in the U.S. illegally, member of a violent criminal gang) is who actually is being deported.

Right now, I trust nothing that Trump said about this. He proclaimed on Saturday that the U.S. was being attacked in an "invasion" or "predatory incursion," so there was some urgent need to do something. What happened? ICE immediately put less than 200 people on airplanes to hustle them out of U.S. jurisdiction. Nothing that I know of that was done on Saturday matches up with what Trump proclaimed. Something sounds off, including that Trump expressly invoked war powers to address routine law enforcement matters.

[Mark Leen]

How can your headline be it is likely Trump Admin violated a Court order when you state: "As I understand, such oral orders are still legally binding. But I admit I am not an expert on the relevant protocol, and I welcome correction by experts with greater relevant knowledge."?

[rloquitur]

Roberts has now weighed in.

https://redstate.com/smoosieq/2025/03/18/breaking-chief-justice-roberts-issues-statement-in-response-to-trumps-call-for-impeachment-of-judge-n2186804

Hoo boy.

[Bob from Ohio]

Just calling balls and strikes. Maybe early senility, since there is zero chance the house would impeach, making this comment is very, very dumb.

The failed Chase impeachment was a national disaster.

[M L]

He might be losing it.

[Estragon]

The widespread enthusiastic acceptance of the idea that the executive can just deport anyone they call a foreign alien terrorist, and treating that mere assertion as a dispositive truth, is mildly stunning to me— even at this late date. When in history has this power, once given or acquiescedto, ever remained cabined to the initial out group? It’s not as if there aren’t historical parallels here.

If we as a society are willing to allow a suspension of normal practices as to this group, what suspensions of rights will we be asked to accept in the next “emergency”?

I did not think several commenters here could sink any lower in my estimation but this thread has proved me wrong. It is my fervent hope that you live long enough to regret supporting such things, and those who would do them.

[rloquitur]

OMG, can we get any more maudlin? I would have hated to see you when Obama redmisted the juvenile American citizen way back when.

And did that poor Afghan family that Joe Biden blew up have due process rights?

[Estragon]

The glib certainty of immunity in the long run from what we are witnessing unfold before our eyes on the part of some commenters is puzzling to me. It suggests a level of historical naivety.

[M L]

"the idea that the executive can just deport anyone they call a foreign alien terrorist"

If I'm not mistaken, the executive not only can, but has a duty to deport illegal aliens. Terrorist or otherwise.

[Estragon]

“treating that mere assertion as a dispositive truth”

Yes, there is no reason for you to reiterate your enthusiasm for this, we already knew.

[David Nieporent]

If you're not retarded, you understand the difference between "illegal aliens" and "anyone they call" an illegal alien.

[ReaderY]

If I understand the text of the Enemy Alien Act correctly, even if it applies (and I don’t think it does) the Trump administration has violated its terms. Section 21 is not the only section. Section 22 gives enemy aliens who have committed no crimes in the United States a “reasonable” amount of time to settle their affairs and voluntarily depart before any deportation action can be taken against them. And Section 23 gives federal district courts jurisdiction over forcible removable actions.

It doesn’t look to me like the Alien Enemy Act lets the administration bypass the courts. Indeed, because it was enacted long before administrative procedures came into being and uses the courts as its primary enforcement mechanism, it may in some ways actually give enemy aliens more process than ordinary ones, because it would appear from Section 23 that they get a direct hearing before an Article III judge rather than before an administrative immigration judge.

Am I missing something?

https://uscode.house.gov/view.xhtml?path=/prelim@title50/chapter3&edition=prelim

[ReaderY]

Indeed, the time allowed to voluntarily depart not only has to be “reasonable,” it requires the President to follow “the dictates of national hospitality and humanity.”

It seems to me that Congress explicitly prohibited the kind of sudden middle-of-the-night departures Trump ordered for enemy aliens who have committed no crimes in the United States. It’s right there in the text of the Enemy Alien

[Estragon]

“Humanity”

This is a key point. Much of what is going on here is explicitly dehumanizing, from the language used to describe these individuals to the head shaved (lots of historical parallels here) jumpsuit frog marching to the obviously preplanned and slickly produced propaganda video.

[Brett Bellmore]

I am really tired of this talk of "dehumanizing" people, when all that is going on is people being treated badly, as humans frequently are, sometimes for good reason.

Save it for when people are treated like animals. A naked perp walk. Cattle cars. You're over-using it, and in the process stripping it of any impact.

[Ghost]

"Even if the TRO was indeed legally defective, the proper remedy was not to ignore it, but to obey and challenge it in court on appeal."

Hypothetical here. If a federal judge ordered the government to assassinate Chief Justice Roberts, is the government supposed to obey the order and then appeal it? I'm pretty sure Roberts would change his tune in that case.

It's a perfectly legitimate strategy to refuse to obey a court order that you believe is illegal. Of course, you do risk the consequences of being found in contempt if the appellate courts disagree with you.

[David Nieporent]

It's a perfectly legitimate strategy to refuse to obey a court order that you believe is illegal. Of course, you do risk the consequences of being found in contempt if the appellate courts disagree with you.

It is not perfectly legitimate to do so. You can be held in contempt even if the appellate courts agree with you.

[Ghost]

You are confusing "illegal order" and "incorrect order." You can absolutely refuse to comply with an illegal order. If you're standing in front of the trial judge, and the trial judge demands that you Venmo her $1,000 to her personal account or she'll rule against you, you can refuse to do so. Sure, the trial judge may find you in contempt, but once it reaches the appellate court that finding of contempt will get tossed because the order was illegal. However, if a judge's order is perfectly legal, but you believe it was an incorrect ruling, you can refuse and the judge will again find you in contempt. When you appeal, even if the appellate court agrees that the order was incorrect, it may still uphold the contempt finding.

[tylertusta]

Government's motion to vacate the TRO:

https://storage.courtlistener.com/recap/gov.uscourts.dcd.278436/gov.uscourts.dcd.278436.26.0_1.pdf

[Thought about __ all my life]

There must be someone at Reason spiking stories.
Facts are now known to be the OPPOSITE

https://www.wnd.com/2025/03/trump-pushes-to-impeach-troublemaker-judge-as-major-conflict-of-interest-is-discovered/

Laura Loomer
BREAKING: Less than 12 hours after I exposed Judge James Boasberg’s conflict of interest with his daughter Katharine Boasberg, who works for a 501c3 called “Partners For Justice”
@PFJ_USA
that gives criminal illegal aliens and gang members legal advice,
Katharine Boasberg has DELETED her
@LinkedIn
page and her Instagram account.

I have exclusively uncovered a massive CONFLICT OF INTEREST involving Judge James Boasberg, the Chief judge of the United States District Court for the District of Columbia. Judge Boasberg recently made the decision to prevent the deportation of criminal illegal alien gang members on planes out of the country.

This is enough for President Trump’s legal team to push for a MOTION FOR RECUSAL for Judge Boasberg.

[Grumbler]

Another Kangaroo court heard from