This past week, federal judge James Boasberg put forward a block on immigration authority to prevent the deportation of alleged Tren De Aragua gang members. This has escalated into a fiery exchange between Boasberg and the Trump administration working with the Department of Justice. Boasberg has served the U.S. with an extensive judicial career, cultivating a reputation in his opinion on January 6th when he said the event was “insurrection by supporters of the former president and was not some violent act instigated by Antifa or the FBI.” Read on to learn about the basics of the issue, Judge Boasberg’s background, what is constituted as wartime powers, what the Alien Enemies Act of 1798 is, and the extent of U.S. bilateral ties with El Salvador.
As of March 20th, the Trump administration is reported to have evaded Boasberg’s order as they failed to meet his Thursday deadline (reference the term “evaded” to your own discretion). In response, they have submitted an Immigration & Customs Enforcement (ICE) declaration stating that Cabinet Secretaries are considering whether to invoke the State-Secrets Privilege. Boasberg has regarded this as “woefully insufficient”.
THE BASICS
Trump has signed an invocation of the Alien Enemies Act of 1798 to authorize the deportation of alleged Tren De Aragua gang members to prison in El Salvador. Serving as the Chief Judge of the District Court of the District of Columbia (D.C.), Boasberg mandated that the administration provide details under seal (information sealed from the public) accounting for the flights’ time of departure from the U.S., time of arrival in El Salvador, and all individuals on the flights. There were two flights total, both have since landed. Boasberg had also ordered that the flights be turned around however, the Department of Justice deemed this demand as a “grave encroachment” and a form of “unnecessary judicial fishing expeditions”.
The Trump administration responded to Boasberg, ignoring the court order by arguing that the ruling is inapplicable given that the flights were already over international waters at the time of its’ deliverance (specifically, the planes were off of the Yucatan Peninsula). They have stated that this is not a definitive form of defiance, simply, the order was given too late. A large reason why this dilemma has caught so much attention is because combatting a federal judge’s order is highly controversial. Karoline Leavitt, White House Press Secretary, stated in response that federal courts do not generally have jurisdiction “over a President’s conduct of foreign affairs.”
EXPLAINING WARTIME POWERS
According to Cornell Law School’s Legal Information Institute, U.S. Congress and the President obtain constitutional powers of both military and armed conflicts. These powers are established in Article I Section 8 Clause 11 of the U.S. Constitution. It says that Congress wields the power to declare war, allowing the President to then direct the military as Article II Section 2 deems him the “Commander in Chief”.
In 1973, the War Powers Resolution was crafted in response to the Vietnam War. Though Congress had authorized Johnson to send troops to Southeast Asia, there was no formal declaration of war. However, they hoped implementing the resolution would place more checks on presidential power. Other examples exist of Congress authorizing the deployment of troops without formally declaring war – the Korean War, Operation Desert Storm, 2001 Afghanistan “war”, 2002 Iraq “war”. In so doing, presidents have sought to work around the formal declaration of war by declaring “emergency powers” that aren’t explicitly outlined in the U.S. Constitution. Examples of this include FDR’s Order 9066 to create Japanese internment camps during World War II, as well as Truman’s action to seize steel mills that weren’t producing for the sake of the 1952 labor strike during the Korean War.
EXPLAINING ALIEN ENEMIES ACT 1798
In lieu of wartime authority, the Alien Enemies Act of 1798 was established amongst the Alien & Sedition Acts of 1798. They were initially passed in preparation for war with France, proposed by the Federalist party that stood for strong central government and were weary of non-citizens in the United States sympathizing with France. The acts authorized and permitted the deportation, arrests and imprisonments of “aliens” during war time.
Particularly with the Alien Enemies Act, the president is able to detain and deport immigrants of an enemy nation without conducting judicial hearings. This act of targeting (not used derogatorily) is based on the immigrants’ citizenship. During wartime, it has been enacted to prevent foreign espionage. The act has been used during the War of 1812, World War I and World War II. In both world wars, it was used to detain and expel Germans, Austria-Hungarians, Japanese and Italian immigrants.
Per the plan text, it may be invoked “in times of declared war, invasion or predatory incursion against United States territory.”
The White House reported that on March 15th, President Trump invoked the Alien Enemies Act of 1798 “upon invasion by Tren De Aragua”. The gang has been condemned for irregular warfare on United States citizens (USCs), undertaking hostile action against the country, mass illegal migration, undermining public safety, and supporting Venezuelan President Maduro. As mentioned in the White House report, Maduro has sought to uphold his agenda to destabilize democratic nations – namely the United States. The Tren De Aragua have also been condemned for working alongside the Cartel de los Soles in Venezuela, both have been deemed Foreign Terrorist Organizations (FTOs).
US RELATIONS WITH EL SALVADOR
The deported gang members have been sent to an El Salvadorian mega-prison that has an infamous reputation. It’s important to learn about how the U.S. and El Salvador have interacted in the past and where they stand today.
Diplomatic relations were initially established in 1863, as El Salvador had gained independence from Spain. On May 1st, 1849, the U.S. then recognized the country as an independent state. However, as the country befell to revolution in the early 1900s, those new ties began to break. In 1931, the U.S. refused to recognize a revolutionary El Salvador; and it wasn’t until 1934 that the U.S. reestablished ties once Maximiliano Hernandez Martinez assumed power. Throughout the 1980s, the U.S. continued to support El Salvador against rising Socialist forces. Now, the U.S. is currently engaged with El Salvador in CAFTA-DR, an international group that facilitates trade & investment.
For a few decades, the U.S. has found an alarming issue amongst crime and violence rates in El Salvador. Though they once had the worst rates of any country in the U.S., that rate has begun to decrease but some argue it is still a horrendous issue. Foreign Policy Magazine reported that between 2015-2016, the country had recorded more homicides than any country in the world. Once Nayib Bukele assumed the presidency February 2024, he implemented an aggressive agenda to increase anti-gang crackdowns; and 92% of Salvadorans have supported this initiative. Bukele currently holds the highest popularity rate in all of Latin America. Despite the newly aggressive take against gangs, the magazine also reports that the numbers showing a decrease in homicide-related violence may not be 100% authentic. You can read more about that in the Foreign Policy Magazine article pasted below.
WHO IS JUDGE BOASBERG?
To center back on the issue with the court order, let’s take a look at Boasberg’s background to solidify the extent of his authority on the matter.
The U.S. District Court of D.C. lists that Boasberg is a native of Washington, having graduated St. Albans School in 1981, obtained his B.A. and graduated Magna Cum Laude in History from Yale in 1985, earning his Master of Studies in Modern European History from Oxford in 1986, lastly receiving his J.D. from Yale Law School in 1990. In 1996, Boasberg joined the U.S. Attorney’s Office for D.C. as an assistant and became a homicide prosecutor. Former president Obama appointed Boasberg to be a judge for the District Court of D.C., where he was later named to seat on the Superior Court by former president G.W. Bush. From 2014-2021 Boasberg served as a judge for the U.S. Foreign Intelligence Surveillance Court (FISC), serving as the presiding judge from 2020-2021. Boasberg was then made Chief Judge of the District Court on March 17th, 2023.
Throughout this extensive career, Boasberg presided over cases for the January 6th defendants and investigations into President Trump prior to his 2nd administration; ultimately issuing the seal opinion that required former vice president Pence to testify to the grand jury during the investigations. Pertaining to January 6th, Boasberg is quoted saying that it was an “insurrection by supporters of the former president and was not some violent act instigated by Antifa or the FBI” (AP News). He has been highly critical throughout his career of the FBI and their surveillance protocols.
Does Judge Boasberg have a prejudiced bias toward the Trump administration? Was his order delivered in time, effectively requiring the administration to provide the necessary details? Has President Trump properly invoked the Alien Enemies Act of 1798? Is El Salvador rightfully considered an enemy nation to the U.S.? Are these deportations a violation of human rights? Should the deported individuals have received judicial hearings? That is for you to decide.
RESEARCH:
NPR
Axios
AP News
U.S. District Court of D.C.
Brennan Center
National Archives
White House
U.S. Department of State
Foreign Policy Magazine
The Hill