The administration’s rushed deportation of alleged gang members seems to have crossed a line

Mar 18th: “Ialways abide by the courts,” claimed President Donald Trump last month. A few weeks on, this commitment to respect judicial decisions is looking shakier. On March 15th a district-court judge ordered the Trump administration to turn around several deportation flights en route to El Salvador containing 261 migrants—most of them alleged to be members of Tren de Aragua (tda), a Venezuelan gang. At a hearing on March 17th he tried to understand why his instruction had been ignored. The government’s rationale for the deportations—and its explanation for why the planes landed in the Central American country, despite the court order—have been messy and opaque. Mr Trump’s critics see the case as yet another sign that he plans to test how far he can resist legal constraints on his actions.

Mr Trump’s central campaign pledge was to carry out mass deportations of illegal immigrants. Yet it was clear even on the campaign trail, long before he was sworn into office, that the colossal backlog in America’s immigration court system would slow him down, because each deportation requires a formal order of removal. So Mr Trump repeatedly said he would invoke the Alien Enemies Act to circumvent the usual procedures. This law, enacted at the end of the 18th century as America was feuding with France, allows a president to detain and deport citizens of countries with which America is at war. It has been invoked only three times, most recently to detain German, Italian and Japanese nationals during the second world war.

This was therefore the law that Mr Trump used to target members of tda, which the president has accused of terrorising American cities. He seems to have signed a proclamation invoking the act on March 14th, though it wasn’t made public until a day later. In it he argues that tda is indistinguishable from the Venezuelan state, and so the gang members’ presence in America constitutes an invasion by a foreign country. Within hours a federal district-court judge in Washington, dc, James Boasberg, issued a temporary restraining order blocking alleged tda members from deportation under the Alien Enemies Act. Yet as the judge was ruling, planes were already in the air.

Here the confusion grows. During the hearing, Judge Boasberg issued an oral order that “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States.” Yet all three deportation flights landed in El Salvador after the judge issued his order. Nayib Bukele, the country’s strongman president, posted on X, “Oopsie…too late”, along with videos of Salvadoran law enforcement officers herding the deportees into a prison. The Trump administration has so far withheld information about any of the purported tda members or evidence confirming their gang affiliation. Notably, several of the Venezuelans who initially sought relief from deportation from Judge Boasberg say they applied for asylum in America partly due to their fear of the gang.

Judge Boasberg has laboured to discern the exact timing of the flights, why the government would ignore his verbal order to turn the planes around, and if there was a compelling national security reason that prompted them to proceed anyway. After failing in its attempts to get the hearing cancelled and to remove Judge Boasberg from the case, the Department of Justice (doj) refused to provide any details about the flights. The judge, cool-headed throughout the proceedings of the 17th, became exasperated, saying that it was a “heck of a stretch” to ignore his verbal order just because the written one was “pithier”. He said he would “memorialise” his instructions for a third hearing in written form, “since apparently my oral orders don’t carry much weight”.

While doj lawyers are insisting in court that the administration is faithfully following judicial instructions, some of those in Mr Trump’s orbit are flaunting the president’s brazenness. Marco Rubio, the secretary of state, reposted Mr Bukele’s “oopsie” missive on X. Tom Homan, Mr Trump’s border tsar, told Fox News, “We’re not stopping. I don’t care what the judges think.” Such comments highlight the unusual nature of this dispute. Administrations do have clashes with the courts. But not only is this one so confrontational, it also indicates the Trump administration’s preparedness to act without waiting for a higher court to step in.

On cnn on March 17th, Stephen Miller, Mr Trump’s deputy chief of staff, sidestepped questions about whether the White House must follow court directives. He declared instead that it was Judge Boasberg who had “violated the law”, “violated the constitution” and “defied the system of government that we have in this country”. Mr Miller added that Mr Trump’s conduct is not “subject to judicial review”. In its bid to cancel the second hearing with Judge Boasberg the doj complained of his court’s “grave incursions on executive branch authority that have already arisen”. The president, the lawyers claimed, was being hampered in his duty to “take swift actions to keep the nation safe”.

The doj claims Ludecke v Watkins, a case from 1948, as support for this proposition. In it, the Supreme Court permitted the president to continue detaining a group of Germans even after the second world war had ended. Stephen Vladeck, a law professor at Georgetown University, acknowledges that “judges may well be inclined to show at least some deference” to Mr Trump’s judgment that tda is functioning as an invading force in America. But he emphasises that Ludecke “doesn’t say anything about the ability of courts” to decide whether “individual detainees are members of tda”. The Trump administration seems to have denied the deportees that measure of due process.

The disregard for—or outright defiance of—Judge Boasberg’s ruling continues a concerning trend. Over the weekend the Trump administration deported a professor at Brown University’s medical school to Lebanon for her alleged support of Hizbullah despite her holding a valid visa. Customs and Border Protection says it did not know of an order requiring the district court to be informed well in advance of her deportation until she had already left the country. Brown has since advised foreign students and staff to reconsider international travel. Days before that, federal immigration authorities arrested and detained Mahmoud Khalil, a recent Columbia University graduate and a legal resident, for participating in protests against the war in Gaza on campus.

These cases have raised suspicions that the Trump administration is determined to deport people even if the courts get in the way. Mr Vladeck reckons that the Trump administration “seems to be banking on the view that, if the targets of its policies are unpopular enough, no one will notice that it’s subverting basic principles of due process”.■