President Trump speaks during an event in the Oval Office of the White House on Tuesday. Mark Schiefelbein/AP hide caption
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Mark Schiefelbein/AP
A federal appeals court late Tuesday blocked President Trump’s use of the Alien Enemies Act to deport Venezuelans the administration says are gang members, likely setting up a legal clash at the U.S. Supreme Court.
Earlier this year, Trump invoked the 18th century wartime power to help streamline the deportations of Venezuelans alleged to be members of the Tren de Aragua gang. Since then, the use of this power has attracted a slew of legal challenges, including two prior Supreme Court decisions. But the high court has yet to directly address the larger question of whether Trump’s invocation of the Alien Enemies Act is legal in the first place.
“The Trump administration’s use of a wartime statute during peacetime to regulate immigration was rightly shut down by the court,” said Lee Gelernt, who argued the case for the ACLU. “This is a critically important decision reining in the administration’s view that it can simply declare an emergency without any oversight by the courts.”
The ruling barred the use of the act in Texas, Mississippi and Louisiana, which fall under the 5th Circuit’s purview. The Department of Homeland Security did not immediately respond to a request for comment. The Justice Department will almost certainly appeal to the wider appeals court or the Supreme Court.
More than 200 men were removed from the U.S. under the Alien Enemies Act and sent to a notorious prison in El Salvador where they were kept for months before being released as a part of a prisoner exchange with Venezuela.
In their decision Tuesday, two judges — appointed by former Presidents George W. Bush and Joe Biden — took issue with the use of the wartime power, the lack of relief if someone is removed by mistake, and the limited notice given to deportees. One judge, appointed by Trump, dissented.
So far, the Supreme Court has weighed in on ancillary issues related to the use of the law. In March it ruled that those being deported through the act needed reasonable time to argue against their removals. In May, it issued an order overnight to stop the deportations out of a facility in north Texas after lawyers moved to quickly stop the removal of their clients, who had only received hours’ notice that they were about to be removed.
Generally, challenges to the use of the Alien Enemies Act have been playing out at individual courts across the country.
District judges in Texas, Colorado and New York have ruled against the administration’s use of the act, questioning Tren de Aragua’s alleged ties to Venezuela’s government and noting that the U.S. is not at war.
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A three-judge panel of the 5th U.S. Circuit Court of Appeals, one of the most conservative federal appeals courts in the country, agreed with immigrant rights lawyers and lower court judges who argued that the Alien Enemies Act of 1798 was not intended to be used against gangs like Tren de Aragua, the Venezuelan group Trump targeted in his March invocation.
Gelernt, who argued the case for the ACLU, said Tuesday: “The Trump administration’s use of a wartime statute during peacetime to regulate immigration was rightly shut down by the court. This is a critically important decision reining in the administration’s view that it can simply declare an emergency without any oversight by the courts.”
The administration deported people designated as Tren de Aragua members to a notorious prison in El Salvador where, it argued, U.S. courts could not order them freed.
In a deal announced in July, more than 250 of the deported migrants returned to Venezuela.
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The Alien Enemies Act has only been used three times before in U.S. history, all during declared wars — in the War of 1812 and the two World Wars. The Trump administration unsuccessfully argued that courts cannot second-guess the president’s determination that Tren de Aragua was connected to Venezuela’s government and represented a danger to the United States, meriting use of the act.
In a 2-1 ruling, the judges said they granted the preliminary injunction sought by the plaintiffs because they “found no invasion or predatory incursion” in this case.
In the majority were U.S. Circuit Judges Leslie Southwick, a George W. Bush appointee, and Irma Carrillo Ramirez, a Joe Biden appointee. Andrew Oldham, a Trump appointee, dissented.
The majority opinion said Trump’s allegations about Tren de Aragua do not meet the historical levels of national conflict that Congress intended for the act.
“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,” the judges wrote.
In a lengthy dissent, Oldham complained that his two colleagues were second-guessing Trump’s conduct of foreign affairs, a realm where courts usually give the president great deference.
“The majority’s approach to this case is not only unprecedented — it is contrary to more than 200 years of precedent,” Oldham wrote.
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The panel did grant the Trump administration one legal victory, finding the procedures it uses to advise detainees under the Alien Enemies Act of their legal rights is appropriate.
The ruling can be appealed to the full 5th Circuit or directly to the U.S. Supreme Court, which is likely to make the ultimate decision on the issue.
