Appeals court rules Trump can’t use Alien Enemies Act to swiftly deport Venezuelans
by Zach Schonfeld
A federal appeals court late Tuesday ruled President Trump can’t invoke a wartime law to swiftly deport alleged Venezuelan gang members, a key legal tool the administration has used to implement its immigration crackdown.
Trump first invoked the 1798 Alien Enemies Act in March to remove Venezuelans the administration accuses of being members of the Tren de Aragua gang.
Tuesday’s ruling blocks Trump from using the law against migrants detained in northern parts of Texas, and the battle could now return to the Supreme Court.
The divided 5th U.S. Circuit Court of Appeals panel found no “invasion” or “predatory incursion” by a foreign nation, the required criteria for the president to summarily deport migrants under the rarely used statute.
“We accept the finding that drug-trafficking is being used as a weapon, but we hold it is not within even an updated meaning of invasion or predatory incursion,” wrote U.S. Circuit Judge Leslie Southwick.
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“The completely accurate implication of this finding is that drugs are a scourge and weaken our citizens and our country, but it is not beyond reason that in 1798 an enemy country could try to sicken and physically weaken those within the United States,” Southwick continued. “That would not have been an invasion or predatory incursion then, and it is not one today.”
Southwick is a nominee of former President George W. Bush. U.S. Circuit Judge Irma Carrillo Ramirez, an appointee of former President Biden, agreed the president improperly invoked the law over the dissent of U.S. Circuit Judge Andrew Oldham, a Trump appointee.
Oldham said his colleagues contravened over 200 years of precedent and transformed judges into “robed crusaders who get to playact as multitudinous Commanders in Chief.”
“Time and time and time again, the Supreme Court has instructed that the President’s declaration of an invasion, insurrection, or incursion is conclusive. Final. And completely beyond the second-guessing powers of unelected federal judges,” Oldham wrote.
Trump’s use of the Alien Enemies Act has become a prominent part of his immigration crackdown. Within hours of invoking the statute in March, immigration authorities used it to remove dozens of Venezuelans to a Salvadoran megaprison.
The deportations have sparked a wave of litigation across the country, and the present case arose after the American Civil Liberties Union (ACLU) in April warned the administration was using the law to imminently deport a new wave of migrants detained in Texas.
The Supreme Court quickly stepped in to temporarily block the deportations as the 5th Circuit considered the case. With the panel’s ruling now in hand, the administration could bring the case back to the justices or first ask the full 5th Circuit — regarded as the nation’s most conservative federal appeals court — to reconsider.
The Hill has reached out to the Justice Department for comment.
“This critical decision makes clear that the president cannot invoke whatever powers he wants. This is a huge victory for the rule of law,” ACLU attorney Lee Gelernt, lead counsel for the migrants, said in a statement.
Despite the president’s overall loss, two of the three judges handed Trump a partial victory.
The ACLU additionally argued that even if Trump had properly invoked the Alien Enemies Act, the administration wasn’t providing migrants with sufficient due process to contest accusations that they are gang members.
Southwick and Oldham ruled that the seven-days’ notice the government now provides was valid based on the current record. Ramirez disagreed, noting that some migrants have expressed difficulty gaining access to counsel in that window and suggesting that a 21-day period was needed.
The court also stressed that Trump remains free to deport the migrants under standard immigration authorities.
“The Government is not enjoined from removing the named Petitioners and putative class members under other lawful authorities,” the opinion reads.
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