Appeals court blocks Trump’s use of Alien Enemies Act to deport Venezuelans

By ALAN FEUER

A federal appeals court late Tuesday rejected President Donald Trump’s attempts to use an 18th-century wartime law to deport immigrants he has accused of belonging to a violent Venezuelan street gang.

The decision by the 5th U.S. Circuit Court of Appeals, in New Orleans, was the first time federal appellate judges had weighed in on the substantive question of whether Trump had properly invoked the law, the Alien Enemies Act, as part of his aggressive deportation agenda. While the ruling by a divided three-judge panel of one of the most conservative courts in the country was a defeat for the administration, the issue was still likely to be heard by the Supreme Court.

Trump had made the Alien Enemies Act, which was passed in 1798, the centerpiece of his earliest efforts to summarily deport a group of Venezuelan immigrants he claimed were members of the street gang Tren de Aragua. In March, he issued a presidential proclamation that drew on the law’s sweeping powers to round up and expel members of a hostile nation in times of declared war or during an invasion or predatory incursion.

But the appellate panel, in a 2-1 decision, rejected his assertions that the U.S. homeland was in fact under invasion by Tren de Aragua, rebuffing the idea that immigration, even at a large scale, was synonymous with a military breach of U.S. borders.

“A country’s encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt or to otherwise harm the United States,” Judge Leslie H. Southwick wrote for the panel’s majority. “There is no finding that this mass immigration was an armed, organized force or forces.”

That finding could have legal and political implications given that Trump has used claims that immigrants are invading the United States not only to justify his use of extraordinary laws like the Alien Enemies Act but also to devise a broader anti-immigration narrative.

The 5th Circuit’s ruling was the latest example of federal courts questioning the president’s basic version of reality and pushing back on his attempts to effectively manufacture crises as a way to grab more power.

The decision by the 5th Circuit barred the Trump administration from using the act to deport a group of people accused of being members of Tren de Aragua being held in an immigration detention center in northern Texas until further notice. It would also likely serve as a ban on expelling other Venezuelan immigrants being held in other detention centers across the country.

Moreover, the ruling kept in place a provision that requires officials to provide any immigrants who might be expelled under the law with a week’s advance warning before their removal.

It was hailed by the American Civil Liberties Union, which has represented the Venezuelan immigrants.

“The Trump administration’s unprecedented use of a wartime statute during peacetime was properly rejected by the court,” said Lee Gelernt, a lawyer for the ACLU who argued the case in front of the appeals court. “This is an enormous victory for the rule of law, making clear that the president cannot simply declare a military emergency and then invoke whatever powers he wants.”

Southwick, who was appointed by President George W. Bush, was joined in the majority by Judge Irma C. Ramirez, an appointee of President Joe Biden. The third judge on the panel, Andrew S. Oldham, a Trump appointee, assailed his colleagues in a 131-page dissent for questioning the president’s authority.

“Today the majority holds that President Trump is just an ordinary civil litigant,” Oldham wrote. “His declaration of a predatory incursion is not conclusive. Far from it. Rather, President Trump must plead sufficient facts — as if he were some run-of-the-mill plaintiff in a breach-of-contract case — to convince a federal judge that he is entitled to relief.”

The panel’s decision was somewhat surprising given that Southwick and Oldham had repeatedly interrupted Gelernt during oral arguments in June.

Oldham in particular had suggested that presidents should be granted great deference when it comes to deciding questions of war or foreign policy. But the panel ultimately rejected the administration’s claims that even federal judges should not be able to question the president’s invocation of laws like the Alien Enemies Act.

The case in front of the 5th Circuit followed a series of rulings from district court judges across the country, most of whom have also rejected Trump’s assertion that the United States was being invaded by members of Tren de Aragua.