DOJ contends judge didn't have authority to order return of 2 deportation flights
The Trump administration is standing its ground in the ongoing dispute about whether it willfully violated a court order last week, arguing in a court filing late Tuesday that a federal judge's directive to turn around two deportation flights was not a binding order.
In a 14-page filing, lawyers with the Department of Justice argued that U.S. District Judge James Boasberg's oral directive was "not enforceable as an injunction" when the judge ordered that the government turn around two deportation flights on their way to El Salvador after the Trump administration invoked the Alien Enemies Act to deport more than 200 alleged Venezuelan gang members without due process.
The government failed to turn the flights around, and an official subsequently acknowledged that "many" of the detainees did not have criminal records in the United States.
"[A]ny any order that restrained the invocation of the Proclamation could not have thereby compelled the President to return foreign terrorists from outside the United States -- and any governmental refusal to do so was thus not a violation of the Court's orders," Deputy Assistant Attorney General Drew Ensign wrote in Tuesday's filing.
At no point in the filing did the Trump administration argue it complied with the court's oral directive to return the two flights of Venezuelan migrants, which was issued from the bench at approximately 6:45 p.m. ET last Saturday; instead, the DOJ lawyers attacked the authority of the bench ruling while insisting they complied with the court's written order that was issued later that evening.
"It is well-settled that an oral directive is not enforceable as an injunction," Ensign wrote. "There are powerful, common-sense reasons why only written injunctions are binding."
Because Judge Boasberg did not mention the return of the flights in his written order -- issued at approximately 7:25 p.m. ET on Saturday -- Ensign argued that the Trump administration may have believed the judge changed his mind.
"When the written order did not include that command, the Government could reasonably have understood that as reflecting the Court's more considered view in a quickly evolving situation," the filing said.
According to DOJ lawyers, the flights carrying the alleged members of Venezuelan gang Tren de Aragua were outside of U.S. airspace when the judge issued his written order, meaning Judge Boasberg lacked the authority to turn the flights around.
"Here, any members of the putative class aboard the referenced flights had already left the United States when the minute order was entered, and thus had already been removed. No court has the power to compel the President to return them, and there is no sound basis to read the Court's minute order as requiring that unprecedented step," Ensign wrote.
DOJ lawyers also slammed Judge Boasberg's authority to redirect the flights, arguing the directive is an "astonishingly ultra vires exercise of judicial power" that conflicts with "basic constitutional principles."
"The President's ultimate direction of the flights at issue here -- especially once they had departed from U.S. airspace -- implicated military matters, national security, and foreign affairs outside of our Nation's borders. As such, it was beyond the courts' authority to adjudicate," the filing said.
On Monday, a federal appeals court heard arguments from the Trump administration seeking to overturn Boasberg's block on the use of the Alien Enemies Act for deportations. The appeals court did not issue an immediate ruling.
