CNN senior legal analyst Elie Honig said Monday that President Donald Trump may not have defied a federal judge’s order that temporarily blocked the deportations of hundreds of Venezuelan gang members to South America.
U.S. District Judge James E. Boasberg blocked the deportations Saturday, though he was told there were already two planes in the air en route to El Salvador and Honduras. While the White House has denied defying Boasberg’s order, Honig added that the administration may not have violated the order if the planes had already landed or had been outside of U.S. territory.
“They came right close to the line and maybe over it and let me give you the specific details we need to know in order to make this determination,” Honig said. “At the moment the judge gave the order, he said in court on Saturday afternoon, ‘I want you to not fly anyone out of here or if flights are already in the air I want you to turn them around.’ At that very moment, where were the airplanes? If they were already on the ground in the United States, then yes, there was a defiance of the order. If they had already landed in El Salvador, then no, there was no defiance of the order, it was already too late.”
“If they are mid-flight, then we get into questions of where were they? Were they over American territory or international waters? And that’s some grey area. That may give the Trump administration something to hang their hat on,” Honig continued.
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The judge verbally ordered for the planes to be returned to the U.S., though it was not included in his written ruling.
White House press secretary Karoline Leavitt said Monday that the planes were already outside of U.S. territory and argued that a single judge does not have jurisdiction over the president’s foreign affairs.
“The Administration did not ‘refuse to comply’ with a court order,” Leavitt said. “The order, which had no lawful basis, was issued after terrorist TdA aliens had already been removed from U.S. territory. The written order and the Administration’s actions do not conflict. Moreover, as the Supreme Court has repeatedly made clear — federal courts generally have no jurisdiction over the President’s conduct of foreign affairs, his authorities under the Alien Enemies Act, and his core Article II powers to remove foreign alien terrorists from U.S. soil and repel a declared invasion. A single judge in a single city cannot direct the movements of an aircraft carrying foreign alien terrorists who were physically expelled from U.S. soil.”
Trump invoked the Alien Enemies Act to deport members of Venezuela’s Tren de Agua gang. Honig said the use of the Alien Enemies Act will be litigated in the courts, though the law typically is invoked when two countries are at war or if the U.S. is being invaded by a foreign government.
“What the law says is it actually gives the president very broad discretion to deport non-citizens in two scenarios: one, if there’s a declared war with the other country, of course, that’s not the case. We’re not in any declared war right now,” Honig said. “Or second, if there’s an invasion by a foreign government. Now the Trump administration has argued that this gang, Tren de Agua’s presence in the United States is essentially an invasion and they’re also arguing that even though this is a gang, they’re sort of aligned or inseparable from the Venezuelan government. I think both of those are aggressive, novel arguments that they’ll be making to the court.”
The law allows for the deportation of non-citizens without them going in front of an immigration or federal court judge. It was initially enacted in 1798 when the U.S. believed it was on the verge of war with France, prompting Congress to pass a series of laws allowing for the president to detain and deport non-citizens during a time of war.
El Salvadoran President Nayib Bukele confirmed that his nation received 238 members of Tren de Agua and 23 MS-13 members, two of whom were ringleaders. He openly mocked the federal judge’s order to stop the deportations by stating on X that it was “too late.”
“As always, we continue advancing in the fight against organized crime. But this time, we are also helping our allies, making our prison system self-sustainable, and obtaining vital intelligence to make our country an even safer place. All in a single action. May God bless El Salvador, and may God bless the United States,” Bukele said.
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