Venezuelan deportation battle could be a constitutional crisis

More than a week ago, President Donald Trump staged his highest-profile mass deportation yet, sending several planeloads of what his administration said were Venezuelan nationals to prisons in Central America and celebrating the accomplishment on social media.

But the details of how the administration got those flights out of the country tell a more unsettling story about trying to undermine the authority of the federal judiciary, the last check on the sweeping powers of the presidency — an effort that included both Trump attacking a federal judge overseeing a legal challenge to the deportations, and the chief justice of the United States issuing an unprecedented rebuke.

The long-dreaded stress test of our democracy may be underway.

Since January, Trump and Elon Musk have used their social media platforms to repeatedly defame judges who issued orders constraining their efforts to dismantle the federal government. The administration has likely lost more rulings than it has won in the first round of more than 150 court challenges that have been filed. The litigation process is long, with many twists and turns, and Trump’s arguments could be successful on appeal. Checks and balances take time.

But these deportations are the first dangerous showdown between Trump and what he calls “activist” judges trying to stymie his agenda. Unsurprisingly, it is a case about immigration, one of his most popular issues, and it features some unsympathetic plaintiffs.

A SELDOM-USED ACT

The administration is seeking to use the 1798 Alien Enemies Act to overcome due process guarantees of fairness in the nation’s deportation laws. The act has been invoked only three times, including in the discredited roundup of Japanese, Italians and Germans during World War II. It allows the president to detain and deport noncitizens during a “declared war” with a foreign nation or government or a “predatory incursion” by that nation or government. But even before anyone could determine whether such a national emergency exists, the Trump administration sought to thwart any judicial review of its actions.

Late Friday evening, March 14, Trump signed an executive order invoking the bygone law against Venezuelan members of the notorious gang Tren de Aragua, or TdA, which peddles women, drugs and violence. “I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States,” he wrote.

But families of some migrants quickly said some men held in Texas detention centers and slated for deportation had no involvement with TdA or had claimed in their asylum petitions that the gang was their reason for fleeing Venezuela. Lawyers for the American Civil Liberties Union filed a lawsuit in federal court in Washington just after 2 a.m. Saturday seeking to stop five men from being deported because the government presented no evidence of TdA membership.

CRITICAL TIMELINE

As per an Associated Press timeline, Judge James Boasberg held a Saturday Zoom hearing at 9:40 a.m. and issued a temporary restraining order stopping the government from deporting the five men. The judge scheduled a 5 p.m. hearing on whether to stop all deportations. Around 4 p.m., the White House made Trump’s executive order public.

At the 5 p.m. hearing, the ACLU lawyer insisted the planes were ready to take off but deputy assistant attorney general Drew Ensign told the judge he didn’t know whether anyone would be deported in the next 24-48 hours. The judge recessed the hearing at 5:22 p.m. to give Ensign time to find out.

At 5:26 p.m., the first plane left Texas; another departed at 5:45 and a third at 7:37. At 5:55, Ensign told Boasberg he still had no information about the flights. At 6:45 p.m., the judge ordered that no planes take off and that any in the air return to the U.S. In the next four hours, three aircraft landed in El Salvador with one having stopped in Honduras first, the AP reported.

The administration’s evasion about the identities and evidence against the 261 passengers continued. Starting Monday, Justice Department lawyers refused to give the judge information about the flights and tried unsuccessfully to cancel another fact-finding hearing and get the case moved to a different judge. Trump posted Wednesday on his Truth Social platform that Boasberg, the top judge for the District of Columbia circuit who was put on the bench by George W. Bush and later elevated by Barack Obama, was a “Radical Left Lunatic of a Judge, a troublemaker and agitator” and that he “should be IMPEACHED!!!”

In an astounding pushback, Chief Justice John G. Roberts said any party upset by any ruling should use the appeals process. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” he wrote.

The stakes have risen far beyond the intricacies of deportation law. The issue now is whether the administration defied a federal court order and whether it would comply with any ruling by Boasberg. At a hearing Friday, the judge asked, “Why was this proclamation essentially signed in the dark . . . and then these people rushed onto planes?” Boasberg added that it “seems to me the only reason” was to prevent legal action. He vowed to get to the bottom of it while the Justice Department considers invoking a state-secrets privilege to avoid further disclosures.

The resolution of this case will determine whether our constitutional crisis has arrived.