The Trump administration on Friday asked the Supreme Court to allow it to restart rushed deportation flights of people labeled “alien enemies,” setting up the court for a major test of its willingness to let the president act unilaterally.
Government lawyers framed the matter as a core constitutional question, one that would determine who has ultimate authority on law enforcement operations.
“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country — the president, through Article II, or the judiciary, through” temporary restraining orders, wrote Sarah M. Harris, the government’s acting solicitor general. “The Constitution supplies a clear answer: the president. The republic cannot afford a different choice.”
The request comes just as U.S. District Judge James Boasberg considers extending beyond Saturday a 14-day temporary pause he placed on the rapid removal of Venezuelans to a prison in El Salvador widely accused of torture. President Donald Trump invoked the 1798 Alien Enemies Act to treat migrants as a foreign invading force to allow the removals without due process.
A three-judge appellate panel in Washington already weighed in on the matter with lightning speed this week, rejecting Trump’s invocation of the 1798 law for removals.
“The theme that rings true is that an invasion is a military affair, not one of migration,” Judge Karen L. Henderson wrote in her opinion.
The Department of Justice, on Trump’s behalf, is asking Supreme Court justices to remove the restrictions and allow immigration law enforcement to quickly resume those flights under Trump’s proclamation, which cited rarely checked national security powers.
Now that the State Department has designated the Venezuelan gang Tren de Aragua as a “foreign terrorist organization,” the White House is asserting the authority to forcefully remove anyone that federal agents deem a member of that group — without a trial or any official court finding.
“As long as the orders remain in force, the United States is unable to rely on the proclamation to remove dangerous affiliates with a foreign terrorist organization — even if the United States receives indications that particular TdA members are about to take destabilizing or infiltrating actions,” the solicitor general wrote to the Supreme Court.
By asking the nation’s top jurists to consider the matter, the White House has escalated an ongoing fight between the executive and judicial branches. The Trump administration initially ignored Boasberg’s verbal order on March 15 to halt the removal flights mid-operation and has since presented an aggressive legal theory that challenges all judge’s authority by claiming that the president has unquestionable military powers beyond U.S. territory.
It has also invoked the “state secrets privilege” to refuse answering any more of his questions about the exact timing of the flights.
In its 44-page petition on Friday, the Trump administration acknowledged that Boasberg is likely to lengthen the pause on these kinds of “enemy alien” removal flights. In a sign that the White House is placing its bets on Supreme Court intervention, the DOJ responded to Boasberg in a one-page filing Friday morning merely saying it opposes extending the restraining order.
Chief Justice John Roberts has given the American Civil Liberties Union, which is representing a tentative class of people facing these kinds of removal flights, until Tuesday morning to respond.
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Jose Pagliery is a reporter at NOTUS.