The Trump government took a major step towards a constitutional confrontation with the Judiciary when planes loaded with Venezuelan detainees landed in El Salvador despite the fact that a federal judge had ordered the planes to turn back and return the detainees to the United States.
The right -wing president of El Salvador, Nayib Bukele, boasted during the announcement that the 238 detainees that were aboard the plane had been transferred to the Center for Confinement of Terrorism (of acronym CECOT) Salvadoran, where at least one year would remain held.
Bukele wrote: “Oopsie … Too Late” (Oh … too late) in a publication on social networks on Sunday morning, which spread the communications director of the White House, Steven Cheung.
Almost at the same time, Secretary of State Marco Rubio, in another publication on social networks, thanked Bukele for a long publication in which he detailed the imprisonment of migrants.
“This seems to me to conform to the court,” said David Super, a law professor at Georgetown University. “You can turn a plane if you want”
Some details of the government’s actions are unknown, including the exact time in which the airplanes landed. In a statement filed on Sunday afternoon, the Trump government said that the State Department and the Department of National Security were “immediately notified” about the written order of the judge when published in the electronic registry at 7:26 PM East time on Saturday. The letter presented implied that the government had legal powers to deport Venezuelans different from those blocked by the judge, which could justify that they remain in El Salvador while the order is appealed.
The administration indicated that the five plaintiffs who filed the lawsuit to block their expulsion (the demand that gave rise to the judge’s order) were not expelled.
On Sunday, several legal analysts still tried to rebuild the chronological order of the actions to determine where the planes were on Saturday shortly before 19:00, Eastern time, and how close is the Trump government of a frank challenge to the system of controls and balances of the Constitution.
It was then that Judge James Boasberg, of the United States District Court for the Columbia district, ordered the Trump government to stop using a war law nothing known, the Law of Foreign Enemies of 1798, as a pretext for the expulsion of immigrants, and that immediately returned to the United States to anyone who had expelled under said law.
Regardless of the time of reception, it seems that the Trump government ignored the order of Boasberg and proceeded to deliver Venezuelans to the Government of El Salvador for their arrest. By promoting the act, Rubio did not mention the order of Boasberg. On Saturday, the judge ordered the Government to return any person expelled to American soil by the Law of Foreign Enemies, “regardless of the means by which he does, whether it is to turn the plane around or not.”
The White House Press Secretary, Karoline Leavitt, issued a statement on Sunday that the administration had refused to fulfill the order and questioned the judge’s authority to issue it.
In an appeal of 25 pages presented on Sunday, the lawyers of the Department of Justice described the order of Boasberg, who was appointed judge by President Barack Obama, of “mass imposition and not authorized to the powers of the Executive.” They argued that Trump’s actions “are not subject to judicial review” due to the constitutional authority inherent in the Presidency in National Security Affairs, in addition to the Federal Courts as a whole are not competent in relation to their exercise of “faculties of war”.
The federal judges have faced Trump’s government for dozens of executive actions that the courts have tried to leave temporarily suspended as long as their legality is evaluated. There have been some cases of plaintiffs who sued the administration and obtained favorable judicial orders and that they have returned to court to claim that the administration has not fulfilled them.
On Friday, a specialist in kidney and professor transplants at the Brown University Faculty was deported in the United States despite the fact that a court had ordered to temporarily block his expulsion, according to his lawyer and documents of the Federal Court.
But some critics of the Administration pointed out on Sunday that Bukele’s mockery (and the tacit support of senior administration officials) seemed to leave Washington to the edge of a constitutional crisis.
“Challenged court order,” wrote Mark Zaid, a Washington lawyer whose legal struggles have put him in Trump’s point. In a publication on social networks, Zaid described the events of Saturday and Sunday as the “beginning of a true constitutional crisis.”
Other experts were worried, but more cautious.
“We need a little more information about the facts,” said Adam Winkler, professor at UCLA. “If the information regarding the deadlines is true, then it seems that the Administration ignored a binding court order.
On Saturday, the Trump government claimed to have powers, by virtue of the Law of Foreign Enemies, to immediately deport any Venezuelan citizen of 14 years or more to consider a member of the Aragua Train, a violent criminal gang that was appointed foreign terrorist organization in February in February. In its proclamation on Saturday, the White House characterized the band as a “hybrid criminal state” that had “an invasion” of the United States, a situation that justified the use of the law of 1798, which had only been invoked three times before: for the war of 1812, the First World War and the Second World War.
That same day, before that measure was taken, five Venezuelans in federal custody filed a collective claim in which they claimed that their expulsion would violate federal legislation and the constitutional guarantee of due process. Boasberg soon dictated a prohibition order in order to block his expulsion.
Then, in a view held on Saturday afternoon, the lawyers of the plaintiffs informed the judge that two planes that transported other Venezuelans expelled under the Law of Foreign Enemies were “in the air.” In a judicial ruling, shortly before 7:00 p.m., Boasberg ordered the government to turn the planes and brought back to the detainees. He then issued a second written order that prohibited the Government from using the Law of Foreign Enemies to deport suspects of being members of the Aragua Train.
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Flights to El Salvador constitute the second consecutive time that the administration of deporting someone is accused of a court order. Rasha Alawieh’s lawyers, a specialized doctor in patients with kidney and professor transplants at the Brown University Faculty, said she was deported on Friday despite a court order in the opposite direction of Judge Leo Sorokin, of the United States District Court in Massachusetts. On Sunday, Sorokin gave the government until Monday to respond to accusations that he had “deliberately disobeyed” his order.