The Trump administration claimed to a federal judge on Monday that it did not recall deportation flights of hundreds of suspected Venezuelan gang members over the weekend despite his specific instructions because that was not expressly included in the formal written order issued afterwards.
The administration also said that even if James Boasberg, the chief US district judge in Washington, had included that instruction in his formal order, his authority to compel the planes to return disappeared the moment the planes entered international airspace.
The extraordinary arguments suggested the White House took advantage of its own perceived uncertainty with a federal court order to do as it pleased, testing the limits of the judicial system to hold to account an administration set on circumventing adverse rulings.
An incredulous Boasberg at one stage asked the administration: “Isn’t then the better course to return the planes to the United States and figure out what to do, than say: ‘We don’t care; we’ll do what we want’?”
The showdown between the administration and the judge reached a crescendo over the weekend after the US president secretly invoked the Alien Enemies Act of 1798 to deport, without normal due process, Venezuelans over age 14 who the government says belong to the Tren de Aragua gang.
The underlying basis for Trump to invoke the statute is unclear because it historically requires the president to identify a state adversary, and Boasberg on Saturday issued a temporary restraining order blocking deportations of five Venezuelans who had filed suit against the government.
At an emergency hearing on Saturday evening, Boasberg extended his injunction to block the deportation of all Venezuelan migrants using Alien Enemies Act authority, and told the administration that any deportation flights already in the air needed to be recalled.
By the time of the hearing, two flights had already taken off and a third flight left after Boasberg issued his ruling. All three flights landed in El Salvador, where the deportees were taken to a special maximum security prison, after Boasberg issued his written order.
The Trump administration claimed at a hearing on Monday that it believed it had complied with the written order issued by Boasberg, which did not include his verbal instructions for any flights already departed to return to the US.
“Oral statements are not injunctions and the written orders always supersede whatever may have been stated in the record,” Abhishek Kambli, the deputy assistant attorney general for the justice department’s civil division, argued for the administration.
The judge appeared unimpressed by that contention. “You felt that you could disregard it because it wasn’t in the written order. That’s your first argument? The idea that because my written order was pithier so it could be disregarded, that’s one heck of a stretch,” Boasberg said.
The administration also suggested that even if Boasberg had included the directive in his written order, by the time he had granted the temporary restraining order, the deportation flights were outside of the judge’s jurisdiction.
The judge expressed similar skepticism at the second argument, noting that federal judges still have authority over US government officials who make the decisions about the planes, even if the planes themselves were outside of US airspace.
“The problem is the equitable power of United States courts is not so limited,” Boasberg said. “It’s not a question that the plane was or was not in US airspace.” Boasberg added. “My equitable powers are pretty clear that they do not lapse at the airspace’s edge.”
At times, the Trump administration appeared to touch on a separate but related position that the judge’s authority to block the deportations clashed with Trump’s authority to direct US military forces and foreign relations without review by the courts.
Boasberg expressed doubt at the strength of that argument, as well as Kambli’s separate claim that he could not provide more details about when the deportation flights took off and how many flights left the US on Saturday, before and possibly after his order.
Kambli said he was not authorized to provide those details on account of national security concerns, even in private, to the judge himself. Asked whether the information was classified, Kambli demurred. Boasberg ordered the government to provide him with more information by noon on Tuesday.
The statements offered by the administration in federal district court in Washington offered a more legally refined version of public statements from White House officials about the possibility that they had defied a court order.
White House press secretary Karoline Leavitt insisted on Monday that the administration acted within “the bounds of immigration law in this country” and said the Trump team did not believe a verbal order carried the same legal weight as a written order.
But the White House’s “border czar” Tom Homan offered greater defiance at the court order and told Fox News in an interview that the court order came too late for Boasberg to have jurisidiction over the matter, saying: “I don’t care what the judges think.”