The Trump administration received pointed questions from a judge over how it’s implementing a rarely-used wartime law to deport Venezuelans suspected of being Tren de Aragua gang members.

A president last invoked the Alien Enemies Act after the attack on Pearl Harbor, designating Japanese, German and Italian nationals as “alien enemies” during World War II.

“Nazis got better treatment under the Alien Enemies Act than what has happened here,” D.C. Circuit Court of Appeals Judge Patricia Millett said during a hearing at the court on Monday. “And they had hearing boards before they were removed.”

“People weren’t given notice, they weren’t told where they were going,” she said about the removal of Venezuelans and others to El Salvador earlier this month.

Lawyers with the Justice Department are asking the appeals court in Washington to overturn a temporary restraining order blocking deportations under the act put in place by district court Judge James Boasberg. A ruling to lift the temporary pause on deportations, or keep it in place, is likely to prompt an appeal to the U.S. Supreme Court.

The fight over the rarely used wartime power has become central to Trump’s immigration crackdown agenda and his efforts to stretch the power of the executive branch.

The panel of three judges did not deliver a decision from the bench but could do so in the coming days.

Judge Millett appeared sympathetic to the arguments of immigrants rights groups who sought to block immediate deportations, but it is unclear which way Judge Karen Henderson, a George W. Bush appointee, was leaning.

According to court documents, if the judge lifts the pause, some 258 people would likely be placed in removal proceedings under the Alien Enemies Act for being alleged members of Tren de Aragua.

DOJ says pause was “enormous intrusion” on president’s power

Justice Department lawyers argued that Boasberg’s order to pause removals under the act is an “unprecedented and enormous intrusion” on the president’s power and that this type of “second-guessing” could potentially hurt the United States’ current and future deals with other countries. The U.S. has negotiated with El Salvador and other countries to take in deportees.

Drew Ensign, the government attorney leading the case, received pointed questions about how it could work for people detained or even removed under the Alien Enemies Act to bring up individual petitions to contest allegations they are members of the Tren de Aragua, a Venezuelan gang.

“The problem here is that they are challenging implementation of the proclamation in a way that never gave anyone a chance to say, ‘I’m not covered,” Millett, an appointee of former President Barack Obama, said. She said prior cases clearly show the government needs to give people that due process.

Due process “can’t be an unlawful intrusion of the president’s powers. The president has to comply with the constitution and laws like everybody else,” she said.

Judge Justin Walker, who was appointed by Trump in 2020, was sympathetic to the government’s argument that those who are currently detained under the Alien Enemies Act should contest their arrests through a habeas petition, which is how someone can legally argue they are being unlawfully detained.

Walker suggested that the plaintiffs, represented by the American Civil Liberties Union and Democracy Forward, should have filed in Texas as opposed to in D.C. The five Venezuelan plaintiffs that first filed the lawsuit are held in Texas, even though their lawyers argued that they now are also representing hundreds of people potentially subject to the act nationwide.

Still, Ensign said that should the judges side with the government and lift the pause on deportations, the government would not have a limitation and not be required to provide notice for those deported under the Alien Enemies Act.

Lower DC court keeps pause on deportations in place

Earlier in the day, Boasberg issued an order to keep in place his 14-day pause on the administration’s ability to deport anyone under the act.

Boasberg denied the government’s attempt to vacate his temporary restraining order, noting that immigrant rights groups were likely to win the argument in court that the men deported to El Salvador should have gotten individualized hearings to determine whether the act applied to them.

“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 his order. “Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.”

Boasberg said the pause on the flights does not prevent the government from making arrests, or even deporting those it suspects of being members of Tren de Aragua.

He gave the immigrant rights groups until Wednesday to file a preliminary injunction, which could pave the way for an even longer court-ordered pause on the use of the wartime powers.

Boasberg also direct Trump’s cabinet secretaries to decide by Tuesday whether they were going to invoke a privilege that would allow them to not disclose information about the deportation flights.

Boasberg and the DOJ went back and forth over whether the administration ignored the judge’s order to not use the act to send 137 Venezuelans to El Salvador on March 15.