Correction: An earlier version of this story misattributed multiple quotes to an incorrect judge. They were said by U.S. Circuit Judge Patricia Millett. This story has been updated to accurately reflect the speaker.
The Trump administration on Monday defended the president’s use of wartime powers to quickly remove Venezuelan migrants and send them to a foreign prison by plane, arguing that the migrants could have challenged their deportations even as they were kept in the dark about where they were going.
The response from an appellate judge in Washington was disbelief.
“There were plane loads of people. There were no procedures in place to notify people. Nazis got better treatment under the Alien Enemies Act than what happened here … and they had ‘hearing boards’ before people were removed,” said Judge Patricia Millett, who was appointed by President Barack Obama.
The District of Columbia Circuit Court of Appeals is considering the matter, just hours after a federal trial judge in the same case reinforced his order restraining the White House from supercharging its deportation efforts by relying on the rarely invoked 1798 Alien Enemies Act.
“People weren’t given notice. They weren’t told where they were going. Those people on planes on Saturday had no opportunity,” to file the traditional habeas corpus lawsuits challenging their detention, Millett said of the deportations the weekend before last.
“We certainly dispute the Nazi analogy,” said Drew Ensign, the Department of Justice’s new deputy assistant attorney general overseeing immigration litigation.
He argued that the White House should continue similar deportations without judicial intervention, claiming that a temporary restraining order represents an “unprecedented and enormous intrusion on the powers of the executive branch.”
“Well, this is an unprecedented action. Of course there’s no precedent for it because no president has ever used the statute this way,” Millett remarked.
The case is quickly becoming the focal point of the tension between the Trump administration and the courts. Federal agencies appear to have ignored U.S. District Judge James Boasberg’s orders to immediately halt the March 15 deportation flights. The White House is challenging any judicial roadblock to its targeting of people accused of being members of the Venezuelan gang Tren de Aragua.
The tension was on full display in appellate court Monday afternoon, as Millett questioned why Immigrations and Customs Enforcement was already prepared to deport migrants it considers “alien enemies” as President Donald Trump secretly signed a proclamation formally designating them as such.
The Department of Justice argued that Boasberg had no authority to engage in “explicit second guessing” of the president. But government lawyers also sidestepped questions about what options were available for deportation targets, claiming that any scrutiny about the operation was tantamount to questioning the wartime measure entirely.
The argument didn’t go well.
“I mean, if the government says we don’t have to give process for that … y’all could have picked me up on Saturday and thrown me on a plane, thinking I’m a member of Tren de Aragua and given me no chance to protest it,” Millett said.
“Somehow it’s a violation of presidential war powers for me to say, ‘Excuse me, no, I’m not. I’d like a hearing. You wouldn’t say that?” she asked.
Ensign deflected, stating that “obviously nothing of the sort is presented by the record here.”
Millett stressed that there was no question on the table about the constitutionality of the wartime measure, but rather serious concerns about how the Trump administration was putting it to use.
“The question is whether a particular proclamation and its implementation is constitutional ... that’s all we’re talking about,” Millett added.
The court hearing lasted nearly two hours as the Trump administration repeatedly insisted that the people it’s targeting for deportation could individually file lawsuits to contest their detention. However, government lawyers wouldn’t concede that these migrants were being captured by ICE agents who refuse to detail where they’re going — or giving them time to file formal challenges.
“So your theory is they don’t get to challenge it until they’re in a Salvadoran jail?” Millett asked.
“If your argument is … it’s an intrusion on the president’s war powers, the courts are paralyzed to do anything, then that’s a misreading of precedent, a misreading of the text of the Alien Enemies Act. And that can’t be an unlawful intrusion on the president’s powers … the president has to comply with the Constitution and laws like everybody else.”
“On that we certainly agree, your honor,” Ensign responded.
The American Civil Liberties Union, which is seeking to halt the Trump deportation mission by attacking it with this class action lawsuit, also faced questions at the same appellate hearing about why it chose to file this case in the nation’s capital as opposed to Texas, where many of the detainees are being held before removal. Judge Justin R. Walker, a Trump appointee from 2020, asked whether the legal fight would be more appropriate in Texas federal courts.
ACLU lawyer Lee Gelernt argued it’s impossible to ensure that each person targeted for removal as an “enemy alien” is kept from getting shipped to El Salvador, particularly when it’s unclear who’s next on ICE’s list.
Walker inquired whether human rights advocates could shoulder more of a responsibility to file lawsuits in the specific court districts where the people are being held, but Gelernt said that would be akin to reaching an answer before knowing the question.
“This has all been done in secret,” Gelernt said. “We’re talking about people being sent to … one of the worst prisons in the world … they’re essentially being disappeared.”
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Jose Pagliery is a reporter at NOTUS.