The Justice Department and the American Civil Liberties Union squared off in front of a federal appeals court on Monday to debate for the first time whether President Trump could use an 18th-century wartime law to deport immigrants he has accused of belonging to a violent Venezuelan street gang.
The debate took place during an hourlong hearing before the U.S. Court of Appeals for the Fifth Circuit in New Orleans. While several lower courts have considered Mr. Trump’s use of the statute, known as the Alien Enemies Act, the Fifth Circuit case is likely to be the first to reach the Supreme Court on the substantive issue of whether the president has been employing it correctly.
The law, which was passed in 1798 as the newly founded United States was threatened by war with France, gives the president expansive authority to detain and expel members of a hostile foreign nation. It has been used only three other times in American history, with those powers granted only in special circumstances: in times of declared war or during an invasion or a “predatory incursion.”
The dueling arguments in front of a three-judge panel centered on whether the presence in American cities of the street gang Tren de Aragua could reasonably be construed as an invasion and whether its members were agents of a hostile foreign nation working at the direction of the Venezuelan government.
Speaking on behalf of the A.C.L.U., which has been representing the Venezuelan men, Lee Gelernt maintained that Mr. Trump had grossly stretched the meaning of the law by seeking to define what amounted to an immigration or a criminal justice problem as an armed invasion.
“This law has been invoked only in major, major wars,” he said, “and the government is now saying you can invoke it for a gang.”
Mr. Gelernt also told the judges that Mr. Trump’s own intelligence community had already rejected the notion that Tren de Aragua was working with the government of President Nicolás Maduro of Venezuela. At the heart of his argument was the idea that Mr. Trump’s vision of the Venezuelan men as posing a military threat to the United States did not comport with reality. If the judges accepted it, he added, they would be tacitly endorsing the administration’s use of extraordinary powers to deport people who were better dealt with through the criminal justice system.
Two of the panel’s judges — Andrew Oldham, a Trump appointee, and Leslie H. Southwick, who was appointed by President George W. Bush — repeatedly interrupted Mr. Gelernt. Judge Oldham, in particular, suggested that presidents should be granted great deference when it comes to deciding questions of war or foreign policy.
“Are we allowed to conduct a federal trial to countermand the president of the United States when he says this is an armed invasion?” Judge Oldham asked at one point.
Mr. Gelernt said that indeed the judges could.
But when Judge Oldham pressed Mr. Gelernt to cite a case that supported that assertion, he acknowledged that it would be difficult to do so.
“Thank you for your candor,” Judge Oldham said.
The third judge on the panel, Irma Carrillo Ramirez, an appointee of President Joseph R. Biden Jr., asked far fewer questions than her colleagues.
Drew Ensign, a lawyer for the Justice Department, told the panel that it had only a limited ability to question Mr. Trump’s determination that Tren de Aragua was engaged in an invasion of U.S. territory.
But even if the judges wanted to contest that conclusion, he said, there was evidence supporting it.
To bolster his case, Mr. Ensign said that the F.B.I. had determined that Tren de Aragua had plans to assassinate critics of the Maduro government in the United States. But he omitted that most of the intelligence community had disputed that finding.
Mr. Ensign also argued that Tren de Aragua had a presence in 40 states across the country and had at times taken over entire apartment complexes, where they had established “a law unto themselves.”
In a rare moment of skepticism, Judge Southwick wondered aloud whether the occupation of an apartment building could truly be considered an invasion or predatory incursion. That definition, he suggested, seemed overbroad and could cover the behavior of much more ordinary criminal groups.
The case in front of the Fifth Circuit emerged from an emergency petition filed by the A.C.L.U. in Federal District Court in Abilene, Texas. It sought to stop the administration from deporting a group of Venezuelan men from an immigration detention center in nearby Anson.
After an all-day scramble, the petition ended up in front of the Supreme Court, which issued a narrow ruling saying that the Venezuelan men needed to be given ample time and opportunity to contest their removal under the Alien Enemies Act. But the justices did not weigh in on the broader question considered by the Fifth Circuit: whether Mr. Trump’s invocation of the Alien Enemies Act was legal.
The two sides argued on Monday about what it meant to provide the Venezuelan men with a reasonable opportunity to challenge their deportation under the act.
Mr. Ensign, speaking on behalf of the Justice Department, said it was sufficient to give the men seven days to file a claim disputing their removals. Mr. Gelernt told the judges that they should give the men 30 days.
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.
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