U of M professor: Trump deportation of Venezuelans is ‘executive defiance’ of courts

[MUSIC PLAYING] NINA MOINI: Our top story today is the Trump administration's move to deport about 250 Venezuelan immigrants to El Salvador. President Trump announced Saturday that he would use a law from 1798 to deport members of a gang but did not provide evidence they belonged to a gang.

The next day, a federal judge ordered the administration to stop the deportations and turn the deportation flights around. The Trump administration has said that because the flights were over international waters when the order came down, it didn't need to comply.

The situation is setting up a major legal battle over presidential power, so we wanted to get some perspective on this from an expert in immigration law. So joining us now is Nadia Anguiano, Director of the Federal Immigration Litigation Clinic at the University of Minnesota. Thanks for being with us, professor.

NADIA ANGUIANO: Thank you so much for having me.

NINA MOINI: Well, there is a lot to unpack here. For starters, would you tell us a little bit about how the deportation of this group of Venezuelans is different from typical immigration proceedings that you would work on?

NADIA ANGUIANO: Absolutely. So it's quite different. And I think it is helpful to start with what I would call the ordinary processes for potentially removing a noncitizen from the United States. Under the Immigration and Nationality Act, Congress determined what is called the exclusive and sole procedure for potentially removing a noncitizen.

And that requires the government to charge the noncitizen with a charge of removability, for the noncitizen to go before a judge and potentially offer any defenses to their removal, and then for the judge to determine, on a case-by-case basis, whether a particular person should or should not be removed, and then beyond that, whether they have the opportunity to stay in the United States, for example, because they deserve asylum.

So that's the general process. Again, case-by-case adjudication. A country has to be designated for removal. And then the removal has to be effectuated to that country. Obviously, what happened on Saturday is quite different from that.

NINA MOINI: Right. And so it starts with this Alien Enemies Act. I think that's a good place to go to as well that President Trump used to order the deportations. It gives presidents greater authority right to deport people from enemy nations during wartime. Can you talk a little bit about the background of this law and how it's been used in the past versus now?

NADIA ANGUIANO: Yeah, absolutely. As you mentioned, this is a wartime authority enacted in 1798. And it has very important limited-- limiting, excuse me, language. The act itself says that it is confined to a time of war or any time when there's an invasion or predatory incursion, but importantly, by any foreign nation or government.

And so the language of the act itself gives the president authority to essentially apprehend, restrain, and remove folks when there is a declare war between the United States and another foreign nation or government, or when there is an invasion or predatory excursion, but again, by any foreign nation or government.

So it's really quite limited in that the president can invoke it in only those two circumstances. And it has only been invoked three times before, and importantly, all during times of declared war, so the War of 1812, the First World War, and the Second World War, and then, again, Saturday by President Trump.

NINA MOINI: What's your understanding of how the Trump administration is interpreting this law to be able to use it in such a way?

NADIA ANGUIANO: Yeah, so President Trump issued a public proclamation, officially invoking this act on Saturday. And he'd been saying that he was going to do it for quite some time.

But obviously, the United States is not currently at a declare war with any other country, including Venezuela, so President Trump sought to get around that issue by declaring that this criminal gang, the Tren de Agua from mainly Venezuela, was a hybrid criminal state that, in his view, is perpetrating an invasion and predatory excursion into the United States. And so, according to him, it gave him the power to order the detainment and removal of any member of this gang that's 14 years or older.

NINA MOINI: And it's unclear if those individuals are all part of gangs, or was there anything provided to show that?

NADIA ANGUIANO: No, and that's part of the problem. And just the extraordinary implication of this proclamation is that we don't know who was on that plane. Actually, I'll qualify that. We do know at least some individuals who were on that plane. And they were the subject of the lawsuit by the ACLU and others on Saturday. But for the vast majority of them, anybody could be on that plane.

And to take a step back about your earlier question, about how President Trump invoked the act, it's really nonsensical that he would classify the Tren de Agua as a foreign nation or government. But that's what the act would have required him to do. But he had to stop short of that and just said that this criminal gang was a hybrid criminal state perpetrating the invasion.

NINA MOINI: And you mentioned this was in the court system like many of the other moves the Trump administration has made. And they are using different interpretations of law. President Trump has said this is like a business. I will go and find ways to use laws and interpret things to move an agenda along.

I wonder about the role of Congress holding on to some of these older laws. Everybody says, well, this is from 1798. And where is the oversight on some of the older laws on the books to make sure that they can stand the test of time today?

NADIA ANGUIANO: Yeah. I mean, I think that-- that's a really great question. But I think that what I would highlight about the oversight in this case and what is really concerning to me as a law professor is the interaction of the president with the court system, putting aside congress.

President Trump now is in defiance of an order by a federal judge on Saturday ordering planes to arrive back or to come back to the United States. And granted, there's a lot of uncertainty about precise timing. But President Trump publicly is saying that a federal judge does not have the authority to order him to not invoke this act.

And so in this particular moment, I think the real showdown, as you might say, is between President Trump and the courts in a really extraordinary case of, in my view, executive defiance of the judiciary.

NINA MOINI: What does that mean for moving forward, for other cases that are through the court system right now? You're saying this is now to a new level of defying the courts. What are some of the implications there?

NADIA ANGUIANO: Yeah, I think that is still TBD. What I can share from the public docket is that there's a hearing today at 5 that the judge ordered to figure out whether there was defiance. But what I think can be said is that the president, through his official channels, is making it very clear that he does not believe the judiciary has the authority to say whether or not he is applying this law correctly because that's what's at issue.

At issue in the case is, can the president invoke this act when we're not at war and when expressly we are not being invaded by a foreign government. And that's the question that the courts need to decide. But President Trump is saying, you cannot even decide that. I will carry out this mass deportation agenda without any oversight by the court system.

NINA MOINI: What do you think that means just for the balance of power? What can happen to the president or that branch of government if they defy the courts?

NADIA ANGUIANO: The court can certainly order them in contempt of an order, impose sanctions potentially up to jail time. At the risk of sounding like I'm catastrophizing, then the question becomes, will the president and his administration even comply with an order of contempt or even-- and I'm not saying that the judge, to be clear, would order the president to be jailed.

But when we start to talk about sanctions and the usual processes that the judiciary can have to ensure that orders are carrying out, it's a real question for me whether this will get heightened to levels that we just haven't seen in our recent history.

NINA MOINI: And, professor, before I let you go, could you explain the role of El Salvador in this conflict and how the Venezuelans ended up there?

NADIA ANGUIANO: Absolutely. So the United States contracted with the president of El Salvador to jail hundreds of noncitizens in these mega prisons, where, I'll highlight, there's no visitation, no recreation, no education allowed.

And the agreement is simply for the United States to pay the government of El Salvador approximately $6 million, if I'm not mistaken, four-year contract of jailing noncitizens that are removed from the United States.

NINA MOINI: Is there precedent for that? Do you see that becoming more common?

NADIA ANGUIANO: I'm certainly not an expert on these contracts. But to my understanding, that is a completely new thing. I've certainly never heard of this kind of contract of outsourcing our carceral state to another country, and one that I'll mention has a lot of human rights abuses and issues itself.

NINA MOINI: Well, professor, thank you so much for coming on and helping to break some of this down for us. It's very helpful. I appreciate your time.

NADIA ANGUIANO: Thank you again for having me.

NINA MOINI: Nadia Anguiano is an Associate Clinical Professor of Law and Director of the Federal Immigration Litigation Clinic at the University of Minnesota.