In the days following U.S. District Judge James Boasberg’s decision on March 15 to issue a temporary restraining order stating that the Trump administration may not proceed with its deportations of alleged Venezuelan gang members to El Salvador, Stephen Miller, White House homeland security adviser and deputy chief of staff for policy, wrote on X that district court judges have overstepped their legal bounds.
“It takes 5 Supreme Court justices to issue a ruling that affects the whole nation,” Miller tweeted on March 20. “Yet lone District Court judges assume the authority to unilaterally dictate the policies of the entire executive branch of government.” When asked to clarify what Miller meant by “unilaterally dictate,” a White House spokesperson wrote in an email to The Dispatch Fact Check, “I think his X post is pretty clear.”
Miller’s post appeared to be a response to a court case over the deportation of alleged members of a Venezuelan gang. President Donald Trump on March 15 issued a proclamation invoking an 18th-century law, the Alien Enemies Act, to remove individuals the government suspects are part of a Venezuela-based gang, Tren de Aragua, from the country. Five detained Venezuelans residing in the U.S., represented by legal advocacy groups including the American Civil Liberties Union (ACLU) Foundation and the Democracy Forward Foundation, filed a lawsuit against the Trump administration contending the government violated their due process rights. Later that day, Boasberg issued a temporary restraining order—both verbally and soon after in a written order—blocking the Trump administration from following through with deportations under the Alien Enemies Act. Yet, the administration later said that two planes carrying 137 alleged Tren de Aragua members to El Salvador—which agreed to imprison the accused offenders in exchange for $6 million—had already departed and were above international waters at the time Boasberg’s written order was issued.
However, Boasberg’s temporary restraining order was not a ruling on the merits of the case, and district court judges do not “unilaterally dictate” executive branch policy decisions. Litigation against the executive branch generally starts in district courts, but that is only the first step. Rulings issued by district court judges can work their way through the appeals courts, potentially all the way to the Supreme Court.
Boasberg issued a temporary restraining order “to maintain the status quo” until a broader case—to determine whether the Trump administration had the legal authority to deport alleged Tren de Aragua gang members to El Salvadorian prisons—could be heard. “Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge,” Boasberg wrote in a decision on Monday upholding his initial ruling.
The Trump administration has already appealed Boasberg’s temporary restraining order to the D.C. Circuit Court of Appeals. Three federal judges on that appellate court heard arguments Monday as to whether it should reverse Boasberg’s temporary restraining order or leave it in place. While temporary restraining orders technically cannot be appealed, the administration is arguing that the order more closely resembles a preliminary injunction than a temporary restraining order. Unlike preliminary injunctions, which require a hearing before being issued, temporary restraining orders are expedited to prevent the possibility of “immediate and irreparable injury, loss, or damage” that could arise from the defendant’s action under litigation. As The Dispatch’s Sarah Isgur stated on a recent Advisory Opinions podcast episode, “Preliminary injunctions are immediately appealable. Temporary restraining orders generally are not.” In many cases, Isgur explained, the Trump administration is “appealing [the temporary restraining orders] anyway and saying, ‘you can’t just label something not appealable if, in fact, it is a preliminary injunction-ish type order.’” The question of whether Boasberg’s temporary restraining order is indeed a temporary restraining order, and not a preliminary injunction, will be central to the case the D.C. Circuit Court of Appeals will hear and decide on.
Still, there’s the actual merits of the case. The Trump administration argues its deportation of alleged Venezuelan gang members is wholly legal under the Alien Enemies Act of 1798. That law authorizes the president—only in times of “declared war … or any invasion or predatory incursion” against U.S. territory—to remove “all natives, citizens, denizens, or subjects of the hostile nation or government” threatening U.S. sovereignty. The Trump administration stated in its proclamation invoking the Alien Enemies Act that Venezuela is functionally a “hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States.”
Many of the deported individuals have denied any involvement with Tren de Aragua and other violent entities and have not been prosecuted for violent crimes. A significant question in the merits case is whether these individuals were deprived of due process rights. Other questions the merits case may examine are whether Venzuela is a “hostile nation or government” and whether violent gang-related activity in U.S. territory amounts to an “invasion or predatory incursion.”
Boasberg will ultimately rule on the broader merits, but that ruling may not necessarily be the final say in the legal dispute, either. The losing party, either the Trump administration or the legal advocacy groups representing the five Venezuelans detained in the U.S. and flown to El Salvador, will have the option to appeal the case to a federal appellate court. That decision from the appeals court can also be appealed to the Supreme Court, although the nation’s highest court selects which cases it chooses to take up. If the Supreme Court opts against hearing a case, then the appellate court’s ruling stands.
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