A federal judge in Washington expressed skepticism on Friday about the Trump administration’s policy of using a powerful and rarely invoked wartime statute to summarily deport immigrants from the country.
The judge, James E. Boasberg, suggested at an hourlong hearing that the White House had stretched the meaning of the statute, the Alien Enemies Act, by applying it to scores of Venezuelan immigrants. The administration accused those immigrants of being members of a violent street gang and flew them to El Salvador last weekend with little or no due process.
The act, which was passed in 1798, is supposed to be used only in times of war or during an invasion against people in the United States from a “hostile nation.” But Judge Boasberg said he was concerned not only that President Trump had sought to use the law when there was neither an invasion taking place nor a declared state of war, but also that the people the government had sought to deport have no way of contesting whether they are actually gang members.
“The policy ramifications of this are incredibly troublesome and problematic and concerning,” Judge Boasberg said.
At the hearing, in Federal District Court in Washington, the judge also vowed to keep investigating a separate but related issue: namely, whether the Trump administration allowed two flights of immigrants to continue on to El Salvador on Saturday evening after he had instructed officials to return the planes to the United States.
“The government is not being terribly cooperative at this point,” Judge Boasberg said, “but I will get to the bottom of whether they violated my order and who was responsible.”
The case of the Venezuelan immigrants has become emblematic of the Trump administration’s increasingly belligerent attitude toward the federal judiciary, which in lawsuit after lawsuit has pushed back against several of the president’s more aggressive executive actions.
This week, bolstered by an angry chorus of his supporters, Mr. Trump called for the impeachment of Judge Boasberg, who has shown no sign of backing down amid the pressure. On Thursday, in fact, the judge edged ever closer to holding the administration in contempt by instructing the Justice Department to explain to him in writing by early next week how it had not violated his order stopping flights of immigrants from going to El Salvador.
Then, on Friday, he opened the hearing in his courtroom with stern words for the government, chiding lawyers for the Justice Department for having used “intemperate and disrespectful language” in a recent court filing of a sort he had never seen before.
At the same time, the case has emerged as a flashpoint in the larger debate over Mr. Trump’s use of extraordinary measures to pursue his immigration agenda. The White House has sought not only to employ the Alien Enemies Act to round up and deport suspected members of a foreign gang, but has also expanded its crackdown to legal immigrants and tourists.
At the hearing on Friday, lawyers for some of the immigrants said that Mr. Trump was essentially trying to use the Alien Enemies Act as a blunt tool to summarily deport whomever he wanted. The lawyers accused the government of setting up a system in which neither the immigrants themselves nor judges like Judge Boasberg could challenge, or even review, the administration’s determinations.
“This is a very dangerous road we’re going down,” said Lee Gelernt, a lawyer for American Civil Liberties Union, which is representing some of the Venezuelan men.
The Justice Department, advancing a maximalist view of Mr. Trump’s power, told Judge Boasberg that courts have only limited powers to question the president’s decisions about what constitutes a war or an invasion.
Drew Ensign, a lawyer for the Justice Department, acknowledged that immigrants caught up in the administration’s deportation efforts could seek to challenge their removal, but only by using a rare emergency petition, known as a habeas writ, which may not be available to them if they have already been removed from the country.
Almost from the moment Judge Boasberg entered his decision last weekend temporarily barring Mr. Trump from using the Alien Enemies Act to deport the Venezuelans, the White House and the Justice Department have accused him of overstepping his authority by improperly inserting himself into the president’s ability to conduct foreign affairs.
But Judge Boasberg imposed the order in the first place to give himself more time to figure out whether Mr. Trump overstepped by stretching or even ignoring several of the statute’s provisions, which place checks on how and when it can be used.
The administration has repeatedly claimed, for instance, that members of the Venezuelan gang, Tren de Aragua, should be considered subjects of a hostile nation because they are closely aligned with the Venezuelan government. The White House, echoing a position that Mr. Trump pushed during his campaign, has also insisted that the arrival to the United States of dozens of members of the gang constitutes an invasion.
But Mr. Gelernt and other lawyers for the Venezuelans dispute those claims, saying that their clients are not gang members at all and should have the opportunity to prove it. The lawyers also say that while Tren de Aragua may be a dangerous criminal organization, which was recently designated as a terrorist organization, it is not a nation state.
Moreover, they have argued that even if the members of the gang have come to the United States en masse, that does not fit the traditional definition of an invasion.
Seeking a resolution to the dispute, Judge Boasberg suggested at the hearing that he might be open to creating some kind of review panel that could determine whether the people the administration wants to deport are actually who officials say they are.
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