"You could throw me on the plane": Trump's claiming the right to deport literally anyone, judge says

Immigration attorneys say that the Trump administration is effectively seeking the right to deport anyone without oversight, pointing to its arguments that the high-profile expulsion of immigrants to El Salvador fell within the president's power over foreign policy.

At the U.S. Court of Appeals for the D.C. Circuit, a three-judge panel heard arguments Monday concerning the Trump administration’s invocation of the Alien Enemies Act to send hundreds of people to a Central American prison with no due process.

While the Trump administration has claimed that these people are members of a gang, Tren de Aragua, Judge Patricia Millett noted that none of the expelled had been given the opportunity to rebut allegations that they were not part of the organization. The administration has also refused to provide details on who they deported and why they believe that they are gang members.

“Those people on those planes on that Saturday, had no opportunity to file habeas or any type of action to challenge the removal under the AEA, and like you've agreed that two of those airplanes people were removed under the AEA, is that what's factually wrong about what I said?” Millett said. 

Millett later added that, under the Trump administration’s current deportation protocol, “You could throw me on the plane.”

In one heated exchange, Millett said that “Nazis got better treatment under the Alien Enemies Act,” in reference to one of the three times that the act has been invoked historically. The Alien Enemies Act has been invoked by a president three times since it was signed more than 200 years ago, during the War of 1812, World War I and World War II.

Matt Cameron, an immigration attorney, told Salon that, given the Trump administration’s refusal to disclose details about who it deported to El Salvador, or why they believe they were members of Tren de Aragua, there is little stopping them from expelling an an American citizen in the same way.

“They’re trying to short circuit the entire immigration process here and they think the Alien Enemies Access is their ticket to being able to throw people out of the country without any due process,” Cameron said. “It’s basically been confirmed that the Trump administration believes that it has the authority to deport U.S. citizens.”

Cameron noted that the Trump administration’s expulsion didn’t seem to even operate in accordance with its agreement with El Salvador. The Trump administration attempted to deport women on these flights, even though the El Salvadorans had only agreed to take men.

In court, the Trump administration was challenging a temporary restraining order imposed by Judge James Boasberg, who heard the case at trial. At the circuit court on Monday, Deputy Assistant Attorney General Drew Ensign said that Baosberg’s order, which affects only the expulsions under the Alien Enemies Act, impinged on executive authority.

“I think the intrusion upon the war powers and foreign policy powers of the president is utterly unprecedented,” Ensign said.

Earlier Monday, Baosberg issued an order rejecting a request from the administration to lift his temporary restraining order, writing that, “before they may be deported, [the accused] are entitled to individualized hearings to determine whether the [Alien Enemies] Act applies to them at all.”

“As the Government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, ‘alien enemies,’” Baosberg wrote. “Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge.”

Cameron said that if the administration is found to have acted within its power in denying due process to these people, and if the courts side with the administration’s position that a judicial check on these deportations is an infringement on the president’s power, there would be very little stopping them from deporting a citizen without due process.

“Once you start to carve out exceptions like this — once you start saying this letter from Marco Rubio gives us permission to deport people; once you start saying that these people with tattoos are who we say they are — there’s no reason at all that that couldn't be any of us,” Cameron said.

This El Salvador case has generated multiple tests for the Trump administration, both concerning Trump’s power to deport people without due process, which could provide a significant roadblock for Trump's promised mass deportations, and whether his administration will or will not obey the courts.

At an emergency hearing in the case on March 15, Baosberg told the Justice Department to tell the planes headed to El Salvador to turn around. The planes, however, continued on.