US President Donald Trump asked the Supreme Court on Friday to overturn a lower court ban on his use of an obscure wartime law to deport alleged Venezuelan gang members without due process.
The emergency appeal sets up a showdown over one of the most glaring examples of Trump’s unprecedented attempts to increase presidential power since returning to the White House in January.
Trump invoked the little-known 1798 Alien Enemies Act to justify rounding up alleged Venezuelan gang members, some of whom were sent to a notorious maximum security prison set up by the right-wing government in El Salvador.
The Trump administration has used images of the alleged Tren de Aragua gang members being shackled and having their heads shaved in the Central American prison as proof that it is serious about cracking down on illegal immigration.
Rights advocates say some of the deportees had nothing to do with gangs and that even potential criminals are required to be given court hearings before expulsion, in line with the US Constitution.
District Judge James Boasberg issued an injunction barring further flights of deportees under the Alien Enemies Act after two planeloads of Venezuelan migrants were sent to El Salvador on March 15.
Boasberg said migrants subject to potential deportation should be “entitled to individualized hearings to determine whether the Act applies to them at all.”
The judge has been asked by the American Civil Liberties Union to extend the temporary restraining order when it expires Saturday.
An initial appeal by the Trump administration was turned down Wednesday with one appeals court judge saying that even “Nazis got better treatment” from the United States during World War II.
In its appeal to the Supreme Court, which is dominated by conservative justices, acting Solicitor General Sarah Harris said the case is a key test of presidential authority over the courts.
“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country” — the president or judges, Harris said.
“The Constitution supplies a clear answer: the President,” she said. “The republic cannot afford a different choice.”
– ‘Summary removal –
Harris said the Alien Enemies Act, which has only been used previously during the War of 1812, World War I and World War II, authorizes “summary removal of enemy aliens engaged in ‘invasions or predatory incursions’ of US territory.”
“The district court’s orders have rebuffed the President’s judgments as to how to protect the Nation against foreign terrorist organizations and risk debilitating effects for delicate foreign negotiations,” she said.
The acting solicitor general asked the Supreme Court to immediately stay the district court’s order while it considers the case.
Trump has campaigned relentlessly on social media against Boasberg, even calling for him to be impeached by Congress, a remark that drew a rare public rebuke of the president from Supreme Court Chief Justice John Roberts.
Attorneys for several of the deported Venezuelans have said that their clients were not members of Tren de Aragua, had committed no crimes and were targeted largely on the basis of their tattoos.
Rights groups have also challenged the use of the Alien Enemies Act without an official declaration of war.
“President Trump is bound by the laws of this nation, and those laws do not permit him to use wartime powers when the United States is not at war and has not been invaded,” said Skye Perryman, president of Democracy Forward.
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