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When the attorney general is promising to defy a court order, the nation is in grave trouble. And on Monday, Attorney General Pam Bondi vowed to do just that, boasting to Fox News host Jeanine Pirro that the US would “absolutely” continue to deport Venezuelans despite a court order telling them to stop.

“What he’s done is an intrusion on the president’s authority. This one federal judge thinks he can control foreign policy for the entire country, and he cannot,” claimed Bondi. (Watch below.)

It’s the latest escalation in a battle between the Trump administration and the courts over the president’s reliance on emergency powers to evade federal law. And for the human beings caught in the crossfire, the results will be catastrophic.

The truth is what Trump says it is

At bottom, this is a dispute about whether the president can define reality by executive fiat and force the legal system to treat his fantastical pronouncements as fact. Here, the argument is over a nested series of lies in the president’s “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua.”

In that proclamation, Trump first insists that the Venezuelan gang Tren de Aragua (TdA) “is closely aligned with, and indeed has infiltrated, the Maduro regime, including its military and law enforcement apparatus.” TdA is indeed a dangerous criminal group which the Biden administration designated as a transnational criminal organization in 2024. And while it has managed to corrupt some officials, it is certainly not co-terminus with the Venezuelan government. If it was, Trump wouldn’t have had to lie about it in his invocation. For instance, the proclamation hyperventilates about Tareck El Aissami, the former governor of Aragua who was appointed as vice president in 2017.

“Soon thereafter, the United States Department of the Treasury designated El Aissami as a Specially Designated Narcotics Trafficker under the Foreign Narcotics Kingpin Designation Act,” Trump intones ominously. He fails to mention that El Aissami resigned in 2023 and was arrested by Venezuelan authorities and charged with corruption in 2024.

Second, Trump announces that the United States has been invaded by Venezuela, using TdA as shock troops.

“[Venezuelan President Nicolás] Maduro leads the regime-sponsored enterprise Cártel de los Soles, which coordinates with and relies on TdA and other organizations to carry out its objective of using illegal narcotics as a weapon to ‘flood’ the United States,” he writes. “Evidence irrefutably demonstrates that TdA has invaded the United States and continues to invade, attempt to invade, and threaten to invade the country; perpetrated irregular warfare within the country; and used drug trafficking as a weapon against our citizens.”

It’s a truly bizarre claim. America is patently not under invasion by a “hybrid criminal state,” despite pockets of violence perpetrated by a handful of foreign gang members. But Trump needs it to be “true” as a precondition to invoke Revolutionary War-era emergency power to justify summary deportations.

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Alien Enemies Act

In 1798, Congress passed four laws known collectively as the Alien and Sedition Acts. The infamous laws targeted speech and immigrants, allowing the president to arbitrarily deport non-citizens and criminalizing criticism of the federal government. The only one of the four still on the books today is the Alien Enemies Act (AEA), which is associated with some of the most shameful chapters in the nation’s history, including the internment of Japanese people during World War II.

Under the AEA:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

President Trump promised to invoke the law on the campaign trail to get rid of undocumented migrants, and now he has — despite the fact that the US is manifestly not under invasion, and, even if it were, TdA is not the Venezuelan government.

On Friday, March 14, Trump signed the proclamation. And the next day, when hundreds of Venezuelan nationals were already en route to Harlingen, Texas, to be loaded onto planes, he published it.

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Litigation

On Saturday morning, six individual plaintiffs represented by the ACLU and Democracy Forward raced into federal court in DC seeking emergency relief. The case was assigned to Chief Judge James Boasberg, who immediately issued a temporary restraining order and convened an emergency hearing. In that hearing, the judge certified all persons subject to the proclamation as a class and ordered the government to stop deporting them immediately.

At 6:48pm, he said, “However that’s accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately.”

That did not happen. Instead three flights of migrants subject to the court order landed in Honduras and El Salvador after that oral ruling. The detainees were handed over to Salvadoran law enforcement and dumped into the country’s Terrorism Confinement Center (CECOT), a 40,000-capacity megaprison where inmates are warehoused 65 to a cell, never taken outside for exercise, and forced to do slave labor under a “no idle hands” policy.

El Salvador’s President Nayib Bukele, who presided over a ruthless crackdown on gangs with little regard for human rights, tweeted a video of the deportees being abused, set to a pulsating soundtrack. He also posted a link to an article about Judge Boasberg’s order with the caption “Oopsie… Too late 😂.” Both posts were retweeted by members of the American government, including Secretary of State Marco Rubio.

Despite parading these men around like human trophies, the Justice Department insisted in court that the government could not possibly disclose any details of the operation without jeopardizing national security. At a Monday afternoon hearing, Assistant US Attorney Abhishek Kambli refused to answer the judge’s questions about the flights, although he offered no legal justification besides “national security.”

Federal judges do not require a security clearance to examine classified documents, and in fact Judge Boasberg, who previously presided over the Foreign Intelligence Surveillance Court, offered to listen to the government’s explanation in a sensitive compartmented information facility (aka, a SCIF). But Kambli was unwilling to provide information under any circumstances.

Instead he made facially nonsensical claims that the government hadn’t violated the court’s order because: 1) the planes were over international waters, outside the jurisdiction of the court, at the time of the order; 2) oral orders don’t count(!); 3) the president’s national security authority cannot be reviewed by any court(!!); and 4) even without the AEA, the president possesses inherent authority under Article II to deport any non-citizen at will(!!!).

“I’m just asking how you think my equitable powers do not attach to a plane that has departed the US, even if it’s in international airspace,” Judge Boasberg asked incredulously, noting that the proper course of action when a court issues an order a litigant disagrees with is to challenge it on appeal, not simply disobey.

The judge ordered the government to either answer his questions about the men on those flights by noon on Tuesday, or explain their legal justification for refusing to comply. But the government is loath to offer specifics about the men deported, since that would simultaneously reveal that they defied a court order and lay bare yet another lie, namely that these men are all terrorists.

“JGG,” the first named plaintiff in this case, is a tattoo artist who says that he was designated as TdA solely on the basis of his tattoos. Another plaintiff, “WGH ,“ says he was apprehended at a homeless shelter in Brooklyn, has never had any gang affiliation, and indeed had a pending asylum claim based on his credible fear of gang violence, including from TdA. Many of the plaintiffs claim that they were forced to sign documents in English, potentially admitting to TdA membership, despite the fact that they only speak Spanish.

In support of the claim that these men are all dangerous criminals, the government submitted a sworn declaration from Robert Cerna, acting field office director of enforcement and removal operations for ICE. It’s a dizzying tour de force of circular logic in which Cerna insists that the lack of evidence that some deportees have done anything illegal at all is actually proof that they are dangerous terrorists.

“The lack of a criminal record does not indicate they pose a limited threat. In fact, based upon their association with TdA, the lack of specific information about each individual actually highlights the risk they pose,” he writes. “It demonstrates that they are terrorists with regard to whom we lack a complete profile.”

Of course, they’re only “terrorists” because the president declared them so by executive fiat. And while some of the deportees are accused of committing serious crimes, others seem to have been picked up simply because they were hanging around with other Venezuelan men the government says are members of TdA.

Cerna describes “two individuals who were in a vehicle during a Federal Bureau of Investigations gun bust with known TdA members; four individuals who were arrested during the execution of an Homeland Security Investigations New York City operation; and four individuals who were encountered during the execution of an arrest warrant targeting TdA gang member [sic], all of whom were in a residence with a firearm and attempted to flee out the back of the residence.” But that’s no proof that the deported men are members of TdA, much less that they’re part of a Venezuelan strike force attempting to take over America.

But the Justice Department has an answer for that, and it is that, if the president says these guys are terrorists, then they are terrorists and there’s not a court in the land that can say otherwise.

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Bad precedent

Since Donald Trump’s personal lawyers took over the Department of Justice, its litigation practices have been … unorthodox. And nowhere is that unorthodoxy on greater display than in this case.

The government already filed two appeals to the DC Circuit of temporary restraining orders, which are not appealable under the Federal Rules of Civil Procedure. It also fired off multiple unhinged letters to the clerk of the circuit court demanding that he order Judge Baosberg to stop bothering them and reassign the case to another judge. These letters were theoretically written pursuant to Federal Rule of Civil Procedure 28(j), which allows a party to inform the court by letter to the clerk of “pertinent and significant authorities [that] come to a party’s attention after the party’s brief has been filed.” It’s not a vehicle for asking the appeals court to do stuff — that requires an actual motion.

All of this is very odd, since the government’s legal position is quite strong here. If AG Bondi and the dozen other high-ranking DOJ personnel who put their names on every filing in this case — another unorthodoxy! — would just quit defying court orders and litigate like normal people, they could probably begin dumping plane loads of Venezuelans into Salvadoran hellholes in a matter of weeks. That’s thanks to the 1948 case Lüdecke v. Watkins, in which the Supreme Court allowed deportation of a German national based on a similar fact-free presidential declaration.

On December 8, 1941, the day after Japan bombed Pearl Harbor, President Roosevelt empowered his Attorney General Robert Jackson to summarily deport Germans under the AEA. Kurt Lüdecke, a former Nazi, was interned at Ellis Island throughout the war, and then slated for deportation to West Germany in 1946. Lüdecke contested his deportation, saying that the AEA only applied during war, and noting that the war had ended in 1945.

A divided Supreme Court ruled against Lüdecke, with then-Supreme Court Justice Robert Jackson casting the deciding vote.

“It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come,” the majority wrote.

Lüdecke, who had been targeted in the Night of the Long Knives and escaped to the West where he wrote an 833-page book in 1937 warning of the dangers of Hitler, was deported in 1948 based on the president’s objectively false assertion that the war was ongoing and Lüdecke was dangerous. It’s an ugly precedent, but it certainly does suggest that the president’s verifiably false assertions of fact cannot be challenged under the AEA.

The Lüdecke case is not in and of itself dispositive. Professor Steve Vladeck notes that “as courts were confronted with hundreds of cases during the Second World War, their review focused extensively on the applicability of the jurisdictional facts, including whether the detainee was connected to a country against which the United States had declared war, and exactly when they were so connected (and when they were arrested).”

This Supreme Court might well allow the president to send Venezuelan asylum seekers to Salvadoran slave colonies based on the patently false declaration that America is being invaded by paramilitary gang soldiers disguised as terrified refugees.

And in a great stroke of luck for the administration, the disfavored appeal of the TRO landed before a three-judge panel that includes Judges Karen LeCraft Henderson, a rightwing Bush appointee, and Justin Walker, a rank partisan who was put on the bench by Trump himself. These jurists have been highly receptive to the administration’s other appeals, and they scheduled this case for oral argument on Friday, March 21. It is entirely likely that the DC Circuit will stay Judge Boasberg’s TRO and allow the deportations to resume next week. But if the government insists on taking a posture of open defiance, these judges’ self-protective impulse might just override their partisan loyalty and force them to examine the case objectively.

So far they’ve been immune to the DOJ’s imprecations to cut Judge Boasberg off at the knees. And if AG Bondi can’t stay off television, it might well stay that way.

That’s it for today

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