The defense of the Trump administration’s use of the Alien Enemies Act by the 47th president’s border tsar, Tom Homan, suggests that the deportations of alleged Venezuelan gang members could be ticketed for the Supreme Court.

Mr. Homan on Tuesday took to “Fox & Friends” to declare: “We follow every procedure within the Aliens Enemy Act. They just need to read that act. We did the right thing.” He added that he was “sick of these radical judges” and vowed to arrest “every one of these people” in order to “keep President Trump’s promises.”

Those comments came in response to an appellate judge’s reckoning on Monday that “Nazis got better treatment” than the Trump administration afforded to alleged Venezuelan gang members. Both of those cohorts of foreign nationals were deported under the Alien Enemies Act.   

The comparison to the treatment of members of the Third Reich came during a hearing on Monday from Judge Patricia Millett of the United States Court of Appeals for the District of Columbia Circuit. A panel of three circuit riders was weighing an injunction from the district court judge, James Boasberg, blocking any further deportations under that seldom-used statute.   

Judge Millett reflected with respect to the deportations of alleged members of the Tren de Aragua gang: “There were plane loads of people. There were no procedures in place to notify people … people weren’t given notice. They weren’t told where they were going. They were given those people on those planes on that Saturday and had no opportunity to file habeas or any type of action to challenge the removal.”

The circuit rider contrasted that removal process with the application of the Alien Enemies Act to Nazis in America during World War II, whom, she reflects, at least had access to hearing boards and established regulations. The Alien Enemies Act was also used to intern Japanese-Americans during World War II, a practice that was upheld by the Supreme Court in Korematsu v. United States. 

Chief Justice Roberts, in a footnote in Student for Fair Admissions v. Harvard, wrote that Korematsu is no longer good law. The overruling of that precedent, though, has left the Alien Enemies Act intact. The statute allows for swift deportations in war or, in the presence of a presidential proclamation, during “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation.”

The government’s lawyer for the appellate circuit, Deputy Assistant Attorney General Drew Ensign, responded to Judge Millet that “we certainly dispute the Nazi analogy” and observed that some of those deported did manage to file petitions of habeas corpus. Mr. Ensign, in a hypothetical, compared Judge Boasberg’s order enjoining the deportations to a judge redirecting an aircraft carrier to the Persian Gulf from the South China Sea.

Judge Millett refused that analogy, calling the restraining order “a straight up judicial process that’s allowed by the Supreme Court and Circuit president.” She also acknowledged the constitutionality of the Alien Enemies Act, but insisted that the “question is the implementation of this proclamation without any process to determine whether people qualify under it.”

The Department of Justice is moving against Judge Boasberg on another front, as well. In a filing signed by Attorney General Bondi the government cited the state secrets privilege to avoid disclosing further information to Judge Boasberg with respect to the deportations to El Salvador. In addition to halting any further deportations under the Alien Enemies Act, the judge is investigating the issue of government compliance. 

Judge Boasberg wants to know whether the administration willfully disobeyed his order to turn around two planes en route to El Salvador under the aegis of the Alien Enemies Act. That order was conveyed orally 45 minutes before it was enshrined in writing. The DOJ claims that the flights were already traversing international waters and that it did not intentionally disobey the command.

The government, in a filing rebuffing Judge Boasberg, writes that this is “a case about the President’s plenary authority, derived from Article II and the mandate of the electorate, and reinforced by longstanding statute, to remove from the homeland designated terrorists participating in a state-sponsored invasion of, and predatory incursion into, the United States.”

The filing, in invoking the shield of state secrets, argues that “further intrusions on the Executive Branch would present dangerous and wholly unwarranted separation-of-powers harms with respect to diplomatic and national security concerns that the Court lacks competence to address.” The privilege of state secrets is available to the government when disclosure “would pose reasonable danger to national security and foreign affairs.”

Secretaries Rubio and Noem, in signed declarations to Judge Boasberg, concur that to have “turned planes around mid-air without regard to important logistical constraints such as fuel availability or foreign airspace restrictions, especially on the legally infirm basis that the Court retained authority over aircraft operating outside the United States, would have implicated grave safety risks.” 

If the panel of the District of Columbia Circuit endorses Judge Boasberg’s injunction, the Trump administration could appeal for an en banc hearing before the entire circuit. After that, the next address for an appeal would be the Supreme Court.