The United States treated alleged Nazis better during World War II than the Trump administration treated Venezuelan migrants last week, a federal appeals judge told a Justice Department lawyer during a court hearing Monday.
The U.S. Court of Appeals for the D.C. Circuit heard arguments Monday afternoon over the Trump administration’s use of the Alien Enemies Act last week to deport more than 200 alleged members of a Venezuelan gang to El Salvador with no due process.
“There were plane loads of people. There were no procedures in place to notify people,” Judge Patricia Millett said. “Nazis got better treatment under the Alien Enemies Act.”
Judge Millett noted that alleged Nazis were given hearing boards and were subject to established regulations, while the alleged members of Tren De Aragua were given no such rights.
“There’s no regulations, and nothing was adopted by the agency officials that were administering this. They 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 under the AEA,” Judge Millet said. “What’s factually wrong about what I said?”
“Well, Your Honor, we certainly dispute the Nazi analogy,” Deputy Assistant Attorney General Drew Ensign said, arguing some of the men were able to file habeas petitions.
The Trump administration has asked the Court of Appeals to overturn a temporary restraining order issued last Saturday by U.S. District Judge James Boasberg, who blocked the government’s use of the Alien Enemies Act for deportations.
Alleged members of the Venezuelan criminal organization Tren de Aragua who were deported by the U.S. government, are detained at the Terrorism Confinement Center in Tecoluca, El Salvador in a photo obtained Mar. 16, 2025.
Presidency Of El Salvador/EPA-EFE/Shutterstock
The appellate judges said they would issue a decision in the coming days.
Ensign compared Boasberg’s restraining order to a judge directing a carrier group from the South China Sea to the Persian Gulf — an analogy that drew an immediate rebuke from Millett.
“Hang on. Hang on,” Millett said. “Asserting a power to do that is not ordering ships to relocate in foreign waters, right? That is a straight up judicial process that’s allowed by the Supreme Court and Circuit president.”
Government attorneys argued that the detainees had a right to petition against their deportation — but Judge Millett questioned whether they realistically had an opportunity to challenge the government’s move before they were flown out of the country.
“District court here hasn’t called into question the constitutionality of the Alien Enemies Act,” the judge said of Boasberg. “It’s been upheld, as you said, as a part of the war power. That’s not the question here. The question is the implementation of this proclamation without any process to determine whether people qualify under it.”
But even as the government maintained that the matter should be dealt through habeas action and that the case does not belong in the federal court in D.C., it refused to provide operational details of the flights that removed noncitizens and the timing of their petitions.
“So your theory is that they don’t get the challenges until they’re in the Salvadorian jail?” the judge said. “Are you saying that they don’t have a right, until they’re removed from the United States, in U.S. custody, to challenge?”
Judge Millett said the alleged lack of opportunity for people to petition deportation before it happens “paralyzed” the courts, calling it a “misreading” of the Alien Enemies Act.
“The problem here is that they are challenging implementation of a proclamation in a way that never gave anyone a chance to say, ‘I’m not covered,'” the judge said.
“And if your argument is we didn’t have to do that, it’s an intrusion on the president’s war powers, the courts are paralyzed to do anything … that’s a misreading of precedent, misreading of the text of the Alien Enemies Act,” she said.
Judge Millett and Ensign appeared to agree on one thing: The president’s actions have brought the court into “unprecedented territory.”
“I think the intrusion upon the War Powers and foreign policy powers of the president is utterly unprecedented,” Ensign argued.
“Well, this is an unprecedented action as well,” Millet responded. “So of course, there’s no precedent for it, because no president has ever used this statute this way, which isn’t to say one way or the other if it can be done, but simply to say we are in unprecedented territory.”
The hearing comes hours after Judge Boasberg ruled that the migrants deserved to have a court hearing before their deportations to determine whether they belonged to the Tren de Aragua gang.
In a ruling denying the Trump administration’s request to dissolve his order blocking the deportations, Judge Boasberg wrote that Trump’s “unprecedented use” of the Alien Enemies Act does not remove the government’s responsibility to ensure the men removed could contest their designation as alleged gang members.
Trump last week invoked the Alien Enemies Act — a wartime authority used to deport noncitizens with little-to-no due process — by arguing that the Venezuelan gang Tren de Aragua is a “hybrid criminal state” that is invading the United States. Boasberg temporarily blocked the president’s use of the law to deport more than 200 alleged gang members to El Salvador, calling the removals “awfully frightening” and “incredibly troublesome.”
An official with the U.S. Immigration and Customs Enforcement subsequently acknowledged in a sworn declaration that “many” of the noncitizens deported last week under the Alien Enemies Act did not have criminal records in the United States.
“The Court need not resolve the thorny question of whether the judiciary has the authority to assess this claim in the first place. That is because Plaintiffs are likely to succeed on another equally fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all,” Judge Boasberg wrote in his ruling Monday, adding the men were likely to win their case.
Judge Boasberg acknowledged that the use of the Alien Enemies Act “implicates a host of complicated legal issues” but sidestepped the larger question of whether the law was properly invoked, instead focusing on the due process deserved by the men. He added that the men have been irreparably harmed by their removal to an El Salvadoran prison where they face “torture, beatings, and even death.”
“Federal courts are equipped to adjudicate that question when individuals threatened with detention and removal challenge their designation as such. 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,” he wrote.
Judge Boasberg also cast doubt on the Trump administration’s allegation that the decision risks national security, noting that the men would still be detained within the United States if they had not been deported.
During a court hearing on Friday, DOJ lawyers acknowledged that the men deported on the Alien Enemies Act have the right to a habeas hearing — where they could contest their alleged membership in Tren de Aragua — but declined to vow that each man would be given a hearing before they were removed from the country.
If the D.C. Circuit Court of Appeals overturns Boasberg’s blocking of the president’s use of the centuries-old wartime law, the Trump administration could exercise the authority to deport any suspected migrant gang member with little-to-no due process.
Lawyers representing the Venezuelan men targeted under Trump’s proclamation have argued that the president exceeded his authority by using the Alien Enemies Act against a gang — rather than a state actor — outside of wartime.
Alleged members of the Venezuelan criminal organization Tren de Aragua who were deported by the U.S. government, are detained at the Terrorism Confinement Center in Tecoluca, El Salvador in a photo obtained Mar. 16, 2025.
Secretaria de Prensa de la Presidencia via AFP via Getty Images
“The President is trying to write Congress’s limits out of the act,” the plaintiffs argued, adding that U.S. presidents have used the law three other times during or immediately preceding a war.
But the Trump administration has argued that the judiciary does not have the right to review the use of the Alien Enemies Act, alleging the deportations fall under the president’s Article II powers to remove alleged terrorists and execute the country’s foreign policy.
“The President’s action is lawful and based upon a long history of using war authorities against organizations connected to foreign states and national security judgments, which are not subject to judicial second guessing,” DOJ lawyers have argued in court filings.
The Trump administration is asking the appeals court to overturn Boasberg’s temporary restraining order blocking the deportations, while Judge Boasberg continues to examine whether the Trump administration deliberately defied his order by sending the men to an El Salvadoran prison rather than returning them to the United States as he directed.
“The government’s not being terribly cooperative at this point, but I will get to the bottom of whether they violated my order and who ordered this and what’s the consequence,” Boasberg said on Friday.
With deportations under the Alien Enemies Act temporarily blocked, the Trump administration has vowed to use other authorities to deport noncitizens. Over the weekend, Venezuelan National Assembly President Jorge Rodriguez announced that the country had reached an agreement to resume repatriation flights of Venezuelan migrants from the U.S.
“We’re going to keep targeting the worst of the worst, which we’ve been doing since day one, and deporting from the United States through the various laws on the books,” border czar Tom Homan told ABC’s Jon Karl on Sunday.
The three-person panel hearing today’s arguments includes two judges nominated by Republican presidents, including one nominated by Trump himself. The D.C. Circuit is the last stop before the Trump administration could take the case to the U.S. Supreme Court, where Trump nominated three judges during his last term, solidifying the court’s conservative majority.
