The administration of United States President Donald Trump has turned to a federal appeals court to lift a block on its ability to use the Alien Enemies Act of 1798 to deport undocumented immigrants.
But at a tense hearing in Washington, DC, on Monday, one judge on the court appeared to baulk at the lack of due process given to undocumented people under Trump’s use of the law.
“Nazis got better treatment under the Alien Enemies Act than has happened here,” Judge Patricia Millett told the court.
Government lawyer Drew Ensign, representing the Trump administration, responded, “We certainly dispute the Nazi analogy.”
Millett is one of three federal judges on the US Court of Appeals for the District of Columbia Circuit.
She was appointed by Democratic President Barack Obama. Her two colleagues were chosen by Republicans: Judge Karen Henderson under former President George HW Bush and Judge Justin Walker under Trump.
The Trump administration has turned to the appeals court in a bid to lift the two-week injunction on its use of the Alien Enemies Act, a wartime law that has only been invoked three times prior.
The last instance was during World War II, when the act was used to imprison Japanese Americans and other residents with ties to US adversaries at the time. The US government later apologised for its actions and offered compensation to Japanese Americans.
Trump, however, has sought to use the act to expand his presidential powers and fast-track the deportation of immigrants he sees as “criminal”. He has described irregular migration into the US as an “invasion” that legitimises wartime powers.
On March 15, he used the Alien Enemies Act to justify the deportation of more than 200 people, most of them Venezuelan men, to El Salvador, where their heads were shaven and they were imprisoned in a maximum-security facility.
The US government has paid nearly $6m to jail the men abroad on the basis that they are members of the Tren de Aragua gang.
Family, friends and community members who knew some of the deported people, however, dispute that accusation. Advocates also point out that the deportees were not given the chance to prove their innocence in court, depriving them of their due process rights.
According to the Reuters news agency, lawyers for one man said he had been misidentified as a gang member based on a crown tattoo he had.
US immigration officials allegedly thought it was a gang marking, but the lawyers say it was a reference to the Real Madrid football team. The man was a former professional football player and a coach for children’s teams.
One of the women who was swept up in the March 15 deportation flight also gave a sworn declaration that she heard a US official acknowledge that “we can’t take off” due to a court order.
The Trump administration has been accused of ignoring an order from Judge James Boasberg on March 15 to halt all removals under the Alien Enemies Act and return all deportation flights to the US.
Trump and his allies, however, have dismissed Boasberg as overstepping his powers by interfering in national security issues.
On Monday, Ensign, the government lawyer, made that argument to the appeals court. He called Boasberg’s ruling an “unprecedented and enormous intrusion upon the powers of the executive branch”.
But Judge Millett instead suggested it was President Trump who had exceeded his authority.
“The president has to comply with the Constitution and the laws like anyone else,” she said.
Meanwhile, Walker, the Trump-appointed judge, pressed a lawyer for the American Civil Liberties Union (ACLU) about the merits of its complaint.
He questioned why the ACLU had filed proceedings in Washington, DC, as opposed to Texas, where the immigrants were held prior to deportation.
“You could have filed the exact same complaint you filed here in Texas district court,” Walker told lawyer Lee Gelernt.
“We have no idea if everyone is in Texas,” Gelernt replied. The ACLU lawyer also argued that the Trump administration had tried to obscure its actions in organising the mass deportation.
“This has all been done in secret,” Gelernt said.
But Walker indicated there was little precedent for a judicial order like Boasberg’s to block what he described as “a national security operation with foreign implications”.
The third judge on the panel remained largely silent throughout the proceeding.
