The Trump administration asked the Supreme Court on Friday to allow it to invoke the Alien Enemies Act to carry out swift deportations.
The emergency application marks the first time the high court has been asked to get involved in the high-profile case after U.S. District Judge James Boasberg issued a temporary restraining order (TRO) blocking deportation flights under the rarely invoked, 18th-century statute.
“This case presents fundamental questions about who decides how to conduct sensitive national-security-related operations in this country—the President, through Article II, or the Judiciary, through TROs,” acting Solicitor General Sarah Harris wrote in the application.
“The Constitution supplies a clear answer: the President. The republic cannot afford a different choice,” she continued.
The 1798 Alien Enemies Act enables migrants to be summarily deported amid a declared war or an “invasion” by a foreign nation. The law has been leveraged just three previous times, all during wars, but Trump contends he can use it because the Venezuelan gang Tren de Aragua is effectively invading the United States.
After the president issued a proclamation invoking the law, the administration quickly deported hundreds of Venezuelan migrants to a notorious Salvadoran prison. Some of the migrants have contested being connected to a gang.
Boasberg, an appointee of former President Obama, has been at the center of Trump’s ire ever since he blocked the president’s plan at a rare weekend court hearing right after Trump signed the order. Trump has called for the judge’s impeachment and repeatedly publicly criticized him in the days since.
The administration’s Supreme Court application comes after the U.S. Circuit Court of Appeals for the District of Columbia issued a 2-1 decision Wednesday declining to lift Boasberg’s rulings.
“Here, the district court’s orders have rebuffed the President’s judgments as to how to protect the Nation against foreign terrorist organizations and risk debilitating effects for delicate foreign negotiations,” the application reads.
“More broadly, rule-by-TRO has become so commonplace among district courts that the Executive Branch’s basic functions are in peril,” she continued.
By default, the emergency application goes to Chief Justice John Roberts, who handles emergency appeals arising from the nation’s capital. He can act on the request alone or refer it to the full court for a vote.
“We will urge the Supreme Court to preserve the status quo to give the courts time to hear this case, so that more individuals are not sent off to a notorious foreign prison without any process, based on an unprecedented and unlawful use of a wartime authority,” Lee Gelernt, lead counsel in the case and deputy director of the American Civil Liberties Union (ACLU) Immigrants’ Rights Project, said in a statement.
The ACLU brought the lawsuit alongside the Democracy Forward Foundation, a left-leaning organization that has filed various challenges against the administration, on behalf of five Venezuelan migrants held by immigration authorities.
It is one of four pending series of lawsuits the Trump administration has brought to the Supreme Court’s emergency docket.
The court is also actively mulling whether to grant requests to narrow rulings blocking Trump’s birthright citizenship restrictions nationwide, fire more than 16,000 federal probationary employees and freeze $65 million worth of teacher development grants.
