ESSAY: Boasberg vs. Trump — the Alien Enemies Act and the Venezuelan detainees at CECOT

ESSAY: Boasberg vs. Trump — the Alien Enemies Act and the Venezuelan detainees at CECOT

Introduction: a judge facing an 18th-century wartime law

Judge Boasberg and the impossible order

In March 2025, federal judge James Boasberg of Washington DC finds himself facing one of the most explosive situations of his career: he orders the turnaround of planes loaded with Venezuelans being deported to CECOT prison in El Salvador under the Alien Enemies Act — a law dating from 1798, designed for wartime. The planes do not turn around. More than 137 Venezuelans land at CECOT. The judge describes these deportations as "flagrant violations" of the right to judicial review. The Trump administration appeals.

This confrontation between a district judge and the most powerful federal government in the world crystallizes a fundamental question: can wartime laws from the 18th century be invoked by a 21st-century president to deport without trial immigrants labeled as enemies? Judge Boasberg answered no. The Trump administration said yes. And the DC Circuit en banc will have to decide on September 29, 2026.

The Alien Enemies Act: a 228-year-old law

The Alien Enemies Act of 1798 is one of the four laws of the Alien and Sedition Acts passed under President John Adams. It authorizes the president to apprehend, restrain, and deport nationals of an enemy nation in times of declared war or invasion. It was invoked during World War I, World War II (against German, Italian, and Japanese nationals) — and never otherwise in American history. Trump dusted it off in March 2025 to designate the gang Tren de Aragua as an invasion force from Venezuela against the United States.

This is not creative interpretation. It is a legal contortion: using a wartime law to deport presumed gang members in the absence of a formal declaration of war, a military invasion, or any other state of hostility recognized under international law. Judge Boasberg found that this application goes far beyond the intent of the drafters of the 1798 law.

CECOT: what we know about this prison

A maximum-security mega-prison designed for total isolation

CECOT — Centro de Confinamiento del Terrorismo — is a maximum-security prison inaugurated in El Salvador under President Nayib Bukele in 2023. Built to hold up to 40,000 detainees, it is presented by the Salvadoran government as the central tool of its anti-gang policy. Thousands of presumed gang members were jailed without formal trial in the first years of its operation. Human rights organizations like Amnesty International and Human Rights Watch have documented extremely severe detention conditions and systematic violations of the right to a fair trial.

The Trump administration's use of CECOT to house Venezuelans deported from the United States — in an arrangement with the Bukele government — is an unprecedented outsourcing of American immigrant detention. This is no longer merely deportation — it is the deliberate imprisonment in a foreign maximum-security prison, without trial, without proven formal charges.

The 137 Venezuelans: who were they really?

The Trump administration presented the 137 Venezuelans deported to CECOT as confirmed members of the gang Tren de Aragua. Lawyers and families of several of them vigorously disputed this designation. Photos of tattoos — presented by the administration as proof of gang membership — were challenged by experts who noted that some tattoos had no documented link to Tren de Aragua.

The fact that these 137 people were deported without an individual hearing, without the ability to contest their gang member designation, is precisely what led Judge Boasberg to intervene. The question is not whether some of them were actually gang members — the question is whether the state can imprison people without giving them the opportunity to contest the charges.

The Boasberg order and the administration's response

An order ignored — and its consequences

In March 2025, Judge Boasberg issued a Temporary Restraining Order ordering deportation planes to turn around. The planes did not turn around. The administration argued that the judge's oral instructions were "defective" and that proper procedure had not been followed. This is the type of argument that allows one to technically not comply with a judicial order while claiming to act legally.

Judge Boasberg found probable cause for criminal contempt — criminal contempt of court — against the administration. He began conducting a contempt inquiry against Secretary of Homeland Security Kristi Noem and other officials. A panel of three DC Circuit judges suspended this inquiry in April 2025. On June 22, 2026, all 11 active judges of the DC Circuit decided to reconsider this suspension en banc.

The constitutional scope of criminal contempt

The criminal contempt inquiry conducted by Judge Boasberg raises deep constitutional questions. Criminal contempt is a rare and serious sanction — it can theoretically result in the imprisonment of government officials for non-compliance with judicial orders. Applied to members of the presidential cabinet, it collides directly with theories of executive immunity and executive sovereignty.

The question the DC Circuit en banc will have to answer in September 2026 is fundamentally this: can a federal judge pursue a criminal contempt inquiry against executive officials who violated his orders in the context of a controversial immigration policy? The answer will have implications far beyond this specific case.

The fate of the Venezuelans: an unexpected prisoner exchange

Returned to Venezuela via an exchange

In an unexpected development, the 137 Venezuelans detained at CECOT were eventually sent back to Venezuela through a prisoner exchange negotiated in July 2025 between the American, Salvadoran, and Venezuelan governments. This exchange — whose exact terms were not fully made public — ended the immediate situation for the directly affected individuals, but did not resolve the legal questions raised by their initial deportation.

Judge Boasberg had ordered the administration to "facilitate the return" of these people or to give them access to judicial remedies in the United States. The exchange returned them to Venezuela — which formally satisfies part of the order (they are no longer at CECOT) but does not give them access to American judicial remedies. Whether the spirit of the order has been fulfilled is debatable.

The effect on ongoing judicial proceedings

The return of the 137 Venezuelans to Venezuela raised the question of whether legal proceedings filed on their behalf could continue — a case may become moot if the plaintiffs no longer have a direct interest in the litigation. Judge Boasberg's contempt inquiry and the DC Circuit's en banc review are not rendered moot for all that: they address the administration's conduct during the initial deportations, independent of the subsequent fate of the deported individuals.

The question of principle — can the administration ignore judicial orders regarding deportations by invoking procedural grounds? — remains entirely open. And it is that question the DC Circuit en banc will have to examine on September 29, 2026.

The DC Circuit en banc: a decision expected in September 2026

What the en banc review means

On June 22, 2026, all 11 active judges of the DC Circuit decided to reconsider en banc the annulment of the contempt inquiry ordered by the three-judge panel in April 2026. This review is remarkable: it means the court's majority finds that the panel's decision — favorable to the administration — deserves to be revisited. The en banc is reserved for cases of particular importance or complexity, and its triggering sends a clear signal about the seriousness with which the court views the situation.

More than 174 former federal judges filed an amicus brief in support of resuming the contempt inquiry — an extraordinarily high number of judicial endorsements that speaks to the gravity with which the legal community views the violations of Judge Boasberg's orders.

The oral arguments of September 29, 2026

The oral arguments before the DC Circuit en banc are set for September 29, 2026. They will determine whether Judge Boasberg's contempt inquiry can resume, and on what basis. The final decision is expected in the months following the arguments. It could open the way to sanctions against Trump administration officials for violating judicial orders — a precedent with no equivalent in recent American history.

For defenders of the rule of law, these arguments represent one of the most important proceedings of the year 2026. The question at the heart of the case — can the executive government ignore federal court orders? — is one of the most fundamental questions of American democracy.

The Alien Enemies Act in its broader context

A law not invoked since 1948

The Alien Enemies Act had not been invoked since the end of World War II. Its use by Trump in 2025 is without modern precedent. It raises fundamental questions about the limits of presidential power: can the president, by simple proclamation, transform an internal security situation — the presence of a criminal gang — into an "invasion" under a wartime law?

Constitutional scholars across the political spectrum have generally answered no. The precedents for use of the Alien Enemies Act involved declared wars or internationally recognized armed conflicts. Designating Tren de Aragua as an invasion force is a rhetorical construction, not a legal or military reality. And Judge Boasberg was the first court to say so formally.

The implications for other groups and situations

If Trump's use of the Alien Enemies Act were definitively validated, the implications would be considerable. Other groups could be designated "enemies" without a formal declaration of war. Other countries could be targeted. The notion of "invasion" could be extended to other forms of non-military presence on American soil. The precedent would be available to any future president — Democrat or Republican.

That is why this case goes beyond the question of the 137 Venezuelans. It defines the limits of what an American president can do by invoking wartime powers in a situation that is not technically a war. It is a constitutional question of the first order.

Fundamental rights under the pressure of security urgency

When security becomes an alibi

The Trump administration justified applying the Alien Enemies Act through security urgency: Tren de Aragua was a hostile force, a national threat equivalent to an invasion. This war rhetoric allows one to short-circuit the usual constitutional protections. But courts refused to accept this equivalence without scrutiny. The Supreme Court, in its May 2025 order, required reasonable notice and the opportunity to contest.

Procedural guarantees as a bulwark

What is at stake in the Boasberg case is precisely the question of minimum procedural guarantees. Even in wartime, even facing proven criminals, American law requires a process. You do not deport human beings to a foreign prison without giving them the opportunity to contest that decision before a judge. This principle is not a bureaucratic obstacle — it is the very definition of the rule of law.

The institutional legacy of this judicial battle

What this case reveals about the separation of powers

The confrontation between Judge Boasberg and the Trump administration illustrates a fundamental tension in the American Constitution: who has the final word? The theoretical constitutional answer is simple — each branch has its domain, and courts interpret the law. The practical answer is more complex: courts have no army. Their only weapon is criminal contempt, and even then, other institutions must enforce it.

The international resonance of an American decision

What is unfolding at the DC Circuit does not concern only the 137 Venezuelans deported in March 2025. It concerns the credibility of American rule of law on the world stage. Allied democracies are watching. Authoritarian regimes are watching too — for different reasons. If American courts cannot enforce their orders on the executive, the American democratic model loses part of its moral force abroad.

Conclusion: an essay on the limits of power

What Judge Boasberg represents

In this essay, I wanted to explore a question larger than the facts themselves: what happens when the executive power decides that court orders are obstacles to circumvent rather than laws to follow? Judge Boasberg represents the institutional answer to that question: courts do not go silent. They inquire, they order, they decide. And when their orders are ignored, they open contempt inquiries.

What September 29 will tell us

The oral arguments of September 29, 2026 before the DC Circuit en banc will be a moment of truth. If the court allows the contempt inquiry to resume, it signals that American courts can still impose consequences on an executive that violates their orders. If it prohibits it, the opposite is true. One of these signals will strengthen democracy. The other will weaken it. And America, and the world with it, will be watching.

By Maxime Marquette, columnist

Columnist's transparency note

My convictions in this matter

I believe courts must be obeyed — by everyone, including the executive. I believe that using the Alien Enemies Act of 1798 to deport immigrants without trial in 2025 is a constitutional abuse of power. These convictions color my analysis and I own them. I do not claim a neutrality I do not have on these fundamental questions.

Sources and method

This article is based on the ABC News report of June 22, 2026, the Bloomberg file of June 22, 2026, analyses from Lawfare Media, and Joyce Vance's blog. The fact of the Venezuelans' return via a prisoner exchange comes from ABC News reporting. I have not had direct access to court documents.

Sources

Primary sources

ABC News — Full appeals court to hear arguments on contempt inquiry, CECOT — June 22, 2026

Bloomberg — Fight over Noem contempt hearing to be reheard by appeals court — June 22, 2026

Lawfare Media — The trials of the Trump administration — June 22, 2026

Secondary sources

Joyce Vance — Boasberg contempt proceedings

Verdict News — DC Circuit grants en banc rehearing in In re Donald J. Trump

El Balad — Boasberg orders the return of the Venezuelans — June 2026