Donald Trump's Deportations Get Edgy
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The Trump administration deports hundreds of alleged gang members to El Salvador despite a judicial order saying it cannot, while some Republicans begin to call for the impeachment of judges who are blocking Trump actions. Welcome to Potomac Watch, the daily podcast, the opinion pages of The Wall Street Journal. I'm Kim Strassel, and I am here today with my two colleagues, Alicia Finley and Bill McGurn.

President Trump on Friday invoked the Alien Enemies Act to deport nearly 300 alleged members of Venezuelan and Salvadoran gangs. After the planes had left on Saturday, a federal judge, James Boasberg, verbally directed in a hearing that the government turn the planes around and then issued a written order.

The administration did not return the planes. They made their argument for why in a Monday hearing that got pretty testy with the judge rebuking them. But the Trump move looks to be very much in keeping with a promise Department of Homeland Security Secretary Kristi Noem made in a recent Department of Homeland Security ad. Let me deliver a message from President Trump to the world. If you are considering entering America illegally, don't even think about it. Let me be clear.

If you come to our country and you break our laws, we will hunt you down. Criminals are not welcome in the United States. For too long, weak leadership has left our borders wide open, flooding our communities with drugs, human trafficking, and violent criminals. Well, those days are over.

Under President Trump, we are defending American families and restoring their safety. If you try to enter illegally, you will be caught, you will be removed, and you will never return. Let's go through this, Alicia. And by the way, I'm glad to see you have not been deported, nor Bill, at least not yet. But let's dive into this. And why don't you start us off with an explanation of the Alien Enemies Act of 1798, which

a law that has been used during the War of 1812 and both World Wars, but has not been used since World War II. What's in it that allows the president to do this? And what was Trump's justification for using it in this case? So, as you point out, this Alien Enemies Act was passed in the immediate aftermath of the founding when there was a lot of tension between the Federalists and the Republicans, especially regarding ties with France.

And so what this law allows the president to do is whenever there is a, quote, unquote, declared war between the United States and any foreign nation or government or any invasion or predatory incursion shall be perpetrated, attempted or threatened against the territory of the United States by any foreign nation or government. And the president of the United States shall make public proclamation of the event.

all natives, da-da-da-da, basically, of the hostile nation or government shall be within the U.S., United States, and not actually naturalize, liable to be apprehended and removed as alien enemies. Now, I read through the entire law because there's some tension and disagreement over whether Trump has the power to do what he's doing. And what he's basically saying, he's actually issued a proclamation that has said that anyone who's part of the Venezuelan gang, TDA, and MS-13 are

arms of the Venezuelan government. And this is an incursion perpetrated by actually the Venezuelan government, Maduro. Therefore, he has the authority to remove anyone who is part of these gangs. By the way, he's also deemed them terrorist organizations. He's able to remove them without any of the normal due process rights that would accord to other illegal immigrants who are in the United States, including a hearing in an immigration court.

So, Bill, when I listen to Alicia say that, it seems to me that there's a little question that this is a very expansive statute, one that gives the president really quite sweeping powers. And Trump is probably in sort of any normal course of things would be allowed to do this kind of deportation, although it strikes me one other big tension in this is

is that supposedly we are meant to be at war for this to be invoked. And there are now a bunch of disputes about whether or not, you know, does that have to be a formal declaration by Congress? Is that something that Trump can simply say on his own? What is your read of this? Well, first of all, I could be wrong in this. My understanding is that not all

All those deported were deported under the alien and sedition law. A lot of them, as I understand, had final deportation orders, which are generally issued by an immigration judge. So some of it is routine. The difference is, I think, that Trump cited the new authority, right?

Actually, it's very old for him, but he's the first one to cite it since, I think, World War II because it helped him expedite the deportations. And I think you're right. It's very expansive. It hinges on whether we're at war and who gets to declare that.

I think like with all these things going on, there are two questions that tend to get conflated. The first one is what the courts will eventually sort out. Does Donald Trump as president and head of the executive branch have the right to do these things? And I think of all these cases being litigated, in more instances than not, the Supreme Court will ultimately find that he does.

Then there's the second question, the right thing to do, even if you have this. I tend to think Trump's vulnerability on this is more political than legal. In other words, if he deports some really innocent person, not innocent in terms of being illegal, but just someone...

working and peacefully and abiding by things, and something horrible happens to them, I think there could be blowback on that. But in the meantime, the question is going to be on who has the right to decide we're in a state of war. I mean, Congress declares war, but we certainly had conflicts without declarations of war. So it's going to tag off the courts for some time. And this is only one

many issues like this that all come down to, does the president have the authority he says he does? Bill just brought up something that I think is a really interesting central question here that's getting some attention, growing attention now that people are focused on this case, and that is whether or not there might be some mistaken identity in here as well, too. This is just a curious question. The Trump administration really has not released much, if any, information in

all about the individuals on these planes, nor is it provided any evidence, as it were, that they were members of one of these gangs. There were two in question, Trandre Ragwa and also MS-13. And I think one of the interesting things here is we now have got some stories coming out from family members of some of the individuals that were sent to El Salvador saying that their family members are not

members of gangs, that they were incorrectly scooped up. And now they're off in this quite horrid El Salvadoran prison, which everyone agrees is really a nasty place to be. And what is the way of fixing that problem, if there is any? Alicia, Bill was talking about the politics of this. Is that something that the administration is a mistake, not being more transparent about wholeness?

who this is applying to and why they are applying it. Well, I think this is actually part of the design is they're being purposely ambiguous. If you listen to the Kristi Noem ad earlier, they want to send a message, don't come here, you could be deported for any reason at any time. And here they're essentially sending these young men. And as you pointed out, there is some dispute over whether some were actually involved in the gang. But under this Alien Enemies Act, the president

and could essentially deem anyone to be involved. They have a friend or such, and there really isn't any due process to contend or to argue against that argument.

So I think the intent of this is to send the message that, you know, to self-deport. Now, on the politics, Donald Trump's immigration policies is actually where he's polling strongest right now. He has a majority support on actually a lot of his hardline immigration positions. And so far, I think there is a lot of public support for deporting members of these gangs. There's no question about that.

But the question is, once you start to get press anecdotes about people who were caught up or ensnared in this that were deported to these work camps and forced to suffer inhumane conditions for crimes that they never committed, there could be a public backlash on this. And I think that could actually undermine support for President Trump's other deportation or other border policies.

We're going to take a quick break. When we come back, more about Trump and his deportation brawl.

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Welcome back. I'm Kim Strassel here with Alicia Finley and Bill McGurn. Let's turn to the argument with this judge. The timeline here is this. The president signed this order invoking the Alien Enemies Act on Friday and formally announced his move on Saturday. The ACLU and Democracy Forward, a liberal activist group, on Saturday morning quickly filed a lawsuit on behalf of five of the Venezuelan men.

The flights on Saturday evening began to leave, and then there was a hearing in front of James Boasberg, an Obama appointee who verbally directed the government to turn the planes around. About 40 minutes later, he posted an order online, but it didn't contain that direction to return the planes.

The administration then landed them and handed over these individuals. And in a Monday hearing, the administration made a couple of arguments. Essentially, the verbal order didn't really carry weight and the written order didn't carry an instruction to return. And that moreover, once those planes were in international airspace, the judge didn't have any authority. He obviously disagrees. Bill, who has the better argument here? Start this out for me.

Yeah, I wish I could. It's very confusing. I think the judge was a little sloppy, not including that language in the written order. I also think the judge may be overreaching. We'll have to see what the appeal courts and I think ultimately the Supreme Court rules. It reminds me of the travel ban. There were all these judges that came out and ruled against the administration. Then it got to the Supreme Court and it was upheld. And I think what we have now, in addition to the fight

over the issue of deportation. There's a fight brewing over the use of judicial power to serve presidential power. That's how the Trump people would argue. And it'll be interesting to see how that turns out. I think there's no question. If you look at the temporary restraining orders they've issued and so forth, there's just an enormous number of

of them about Donald Trump. And I think, again, I think he'll prevail in a lot of those cases. A lot, as I say, comes down to this is a tough question. Who decides whether we're at war? And it's going to be the president. That's how the Constitution lies. Now, on details on some of it,

maybe they'll lose and be modified. I don't think you'll get across the board wins. I think at the end of this, we'll have clarified a lot of the separation of powers. Alicia brought up, I think we had Clarence Thomas's

concern about the judicial orders and so forth, that one judge somewhere can stop the president from doing something all across the nation. I think that is right for a decision by the Supreme Court. I think they're going to have a hard time ignoring it. Alicia, talk about that a little bit, because this issue of injunctions or injunctive relief is

Obviously, there are different levels of this, right? Okay, there are temporary restraining orders, which are meant to be in place for short periods of time until you have a hearing. There are temporary injunctions. There are permanent injunctions. There are universal injunctions, ones that extend beyond the particular jurisdiction and theory of the judge. It is, in general, correct to say, is it not, that

The use of these has grown significantly in the 21st century. Definitely, if you go back through the United States, they were relatively rare. What is your view of the amount that are being issued at the moment in response to Donald Trump? Now, look, there's a lot of litigation.

I should also hasten to say that there are a lot of judges that have actually refused to issue temporary restraining orders or injunctions. But there are a handful of judges, more than a handful, that have been handing them out right and left, in some cases going so far as to order the administration to

to take certain actions. For instance, the judge who recently ordered the administration to pay out certain funds to contractors. Is this becoming a problem among the judiciary? I think it's a major problem. You saw that going back to the first Trump administration, which when it really started to come to a head when you had Democratic AGs and other liberal groups

sue in friendly jurisdictions like the Ninth Circuit, where you have a lot of liberal judges, as well as the D.C. Circuit. You get judges like James Boasberg, who actually issued a number of essentially universal injunctions and overreaching injunctions that tied or went beyond the specific plaintiffs in the case to block a policy in general. So usually when you have an injunction or historically what has happened is the courts will decide the

case and controversy before them, which is usually between a defendant and a particular plaintiff. And if there's, for instance, a government action that affects a particular plaintiff, it will enjoin it as to that plaintiff, but not across the entire country and across all potentially other affected parties. But you saw that increasingly happen.

in the Trump administration, where, for instance, California would sue to block a Trump administration policy or a left-wing group would sue to block a policy of immigration, for instance, for Maine to Mexico. That was a major one. And a judge would issue a universal injunction blocking it across in all states. And, of course, Texas was very supportive of Trump's policies, but nonetheless, the same injunction applied to Texas.

Now, what you actually saw is Clarence Thomas did opine an opinion to one of his decisions that, you know, maybe judges are going too far. Neil Gorsuch has also adopted that position that judges should not be issuing universal injunctions because that actually prevents different district courts from hearing cases. And maybe they come to a different conclusion and then these cases will eventually percolate up to the Supreme Court.

whereas kind of one district judge could essentially tie the hands of another district judge when you have a universal injunction. And so it became a problem. But you also saw during the Biden administration, you saw some conservative judges issuing universal injunctions, but you also saw some actually pull that back, especially in the Sixth Circuit. Case in point was, you know, the Clean Water Act rule that the Biden administration imposed. And you had a number of

Republican states sued to challenge that rule. And it was blocked within the conservative states that had sued to challenge it, but it was allowed to go into effect in the other states. And so I think some of the conservative judges have actually taken the cue from Justice Thomas and narrowed the injunctions. But liberal justices clearly haven't, and you're now seeing them order

the release of funds, essentially through an injunction blocking President Trump from essentially reviewing Biden administration's spending policies and how they decide to distribute money through this known as the Green Bank. And you have essentially judges and plaintiffs asking for a judge to provide blanket relief to anyone, even if they aren't party to a case. And I think that's not exactly what the framers intended when they set up the judiciary. We're going to take one more break.

When we come back, more on Trump and his deportation orders. Cyber resiliency is becoming an enterprise-wide priority for many companies. On this episode of Tech Fluential, Deloitte's Lou DiLorenzo talks with Rohan Amin, Chief Product Officer at Chase, and Jamil Farshi, Executive Vice President, Chief Information Security Officer, and Chief Technology Officer at Equifax.

Together, they reframe the conversation on resiliency and risk management as a catalyst for innovation and long-term growth. Where technology and influence converge, new opportunities can emerge. That's Techfluential, a podcast from Deloitte and custom content from WSJ. Don't forget, you can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker. Play the Opinion Potomac Watch podcast. From the opinion pages of The Wall Street Journal, this is Potomac Watch.

Welcome back to Potomac Watch. Well, this overreach by judges has certainly gotten Republicans' attention. In the case regarding the Venezuelans who were deported, Trump unloaded on the judge on Truth Social, specifically writing, quote, this judge, like many of the crooked judges I am forced to appear before, should be impeached, with many exclamation points after that.

End quote. And that joins calls by members of Congress and Elon Musk for judicial impeachments. Bill, this inspired Chief Justice John Roberts today on Tuesday to do something that he rarely does. He issued his own statement in response, noting...

End quote.

And, you know, I have to agree with that. I am with Alicia that there is some abuse that we are seeing among the judiciary with the use of injunctions and other ways that it is throwing its weight around, arguably in a way that judges shouldn't or don't have to.

well, that they shouldn't be doing it. So, they're over-flouting their judicial muscle right now to a certain degree. But that being said, I don't know that, I mean, impeachment is not necessarily the way to deal with this because you're essentially going to weaponize and own

that process. And I'm a little surprised at some Republicans that are so quickly turning to this. You know, we just spent four years dealing with lawfare and dealing with, you know, extraordinary circumstances. But prior to that, two impeachments of Donald Trump, and obviously things need to be calmed down, go back through the orderly process.

It would strike me that one way to do that would be to allow the Supreme Court to take up some of these issues and send some guidance to these lower court justices about the best way to handle stuff, but that to immediately go to the impeachment route really escalates what says you.

Well, generally, you're absolutely right. This is a consequence of the lawfare we've been seeing for years. You mentioned the impeachments of Trump. There's so much going on. And this is a backlash. Now Trump people are in power and they're getting even. So they're responding to abuse with the dubious proposition. I think John Roberts was right. But people feel frustrated by the kind of abuses you want.

In general, though, I'd have to say the founders expected this. They expected each branch of government to jealously guard its own rights and probably try to encroach on the rights of the other branches, but the other branches would resist. Ironically,

They expected the least practitioner of that to be the judicial branch. They thought it'd be more reserved. So I think we're going to have this until the courts start reining these judges in and giving some guidance on the thing that keeps us really free, the separation of powers. But

Calling for the impeachment of judges, the requirements are pretty high. As I understand it, I think it needs two-thirds of the Senate. When do we ever get two-thirds of the Senate to agree on something? So it's kind of a name-calling. It won't have any effect. It's not a real threat. They're not going to be impeached.

So I await, as you say, the further guidance. And, you know, to Alicia's point, I think Clarence Thomas was prophetic in calling for the court to resolve this kind of issue. Because whenever you have like a policy that Trump announced, you know, some judge somewhere is going to block it. Yeah. And I would note that watch his space because the Trump administration just recently filed a brief appeal.

Entirely focused on this question, requesting the Supreme Court please handle this question of injunctions and put out some guidance to lower courts. It has to do with a very specific case that they're dealing with on birthright citizenship. But the brief was focused on asking the court to finally resolve some questions on injunctions.

Thank you, Bill. Thank you, Alicia. I want to thank our listeners. We are here every day. If you like the show, please hit the subscribe button. And if you'd like to get in touch, you can at pwpodcast at wsj.com. Okay, business leaders, are you here to play or are you playing to win? If you're in it to win, meet your next MVP. NetSuite by Oracle.

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