An attorney representing immigrants facing possible deportation under President Donald Trump's lawless use of the Alien Enemies Act warned Monday that the United States is on the verge of a constitutional crisis, with the administration openly defying and seeking to oust a federal judge who sought to bar the removal of Venezuelans accused without due process of being gang members.
Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project, said during a court hearing Monday that "there has been a lot of talk the last couple of weeks about a constitutional crisis."
"I think we're getting very close to that," Gelernt said as the Trump Justice Department formally requested the removal of U.S. District Court Judge James Boasberg, an Obama appointee, from the case involving the administration's invocation of the 1798 Alien Enemies Act, which plainly states it can only be used in the context of a declared war.
Speaking to reporters following Monday's hearing, Gelernt noted that the 1798 law had only previously been used three times in U.S. history—"all during declared wars."
"The president is simply thumbing his nose at Congress," said Gelernt. "The administration has not only invoked the act in an unprecedented and lawless way, but they have refused to give individuals the opportunity to show that they're not actually part of the [Tren de Aragua] gang."
"We don't know all of the individuals who have been removed so far because the government did it in secret," Gelernt added.
At Monday's hearing, Boasberg gave the Trump administration until Tuesday afternoon to produce information on its decisionmaking in the wake of the judge's Saturday order barring the deportation of Venezuelan immigrants to El Salvador.
The administration claimed in a Monday filing that the court "lacks jurisdiction" over the president's authority under the Alien Enemies Act.
In his weekend order, Boasberg directed the administration to turn deportation planes around and halt planned flights, instructions that the administration defied. A New York Times examination of publicly available flight data showed that "none of the planes in question landed in El Salvador before the judge's order, and that one of them did not even leave American soil until after the judge's written order was posted online."
Politico reported that "at moments during the 45-minute hearing" on Monday, "the normally unflappable judge raised his voice, rejecting the Justice Department's contention that the government had an exceptionally urgent need to move the planes."
In public appearances and social media posts, Trump administration officials and allies of the president are embracing a fight with the judiciary and flaunting the White House's defiance of Boasberg's order—intensifying concerns of a constitutional emergency.
"We're not stopping," Tom Homan, Trump's immigration czar, said in a Fox News appearance on Monday. "I don't care what the judges think."
Responding to Homan's remarks, Gelernt toldABC News, "I almost don't know what to say to that."
"That is a really, really dangerous comment," he continued. "If the administration is going to openly defy the courts, then we are closing in on what people would call a constitutional crisis. Our country is based on the rule of law, the federal courts have always been able to say what the law is, and so this is a real separation of powers question."
Open defiance of the federal judiciary, Gelernt added, "is a real slippery slope to a different kind of country."
Robert Reich, the former U.S. labor secretary, wrote in a blog post on Monday that "many people wonder if we're in a 'constitutional crisis'" and noted that "definitions of that phrase vary considerably, as do opinions about whether we're in one now."
"My worry is that Trump is surrounded by extremist anti-democracy nihilists, including his vice president, who are encouraging him to defy the Supreme Court," Reich wrote. "If and when he does, we'll be in a constitutional crisis that should cause every American to take to the streets."
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