A pair of judges on a federal appeals court panel seemed skeptical of arguments against President Trump’s use of the 1798 Alien Enemies Act to swiftly deport suspected Venezuelan gang members.
The conservative-leaning US Court of Appeals for the Fifth Circuit heard arguments Monday for just under an hour from both Trump administration lawyers defending the president’s invocation of the 18th-century act and American Civil Liberties Union (ACLU) attorneys representing some of the alleged members of Tren de Aragua the administration is seeking to remove under the wartime law.
The legal battle before the New Orleans-based court — which appears destined to eventually be decided by the Supreme Court — aims to determine whether Trump lawfully invoked the Alien Enemies Act in March to target the Venezuelan prison gang, and, if so, how much notice a migrant targeted for deportation must be given before removal from the US.
At one point in the hearing, Judge Andrew Oldham, a Trump appointee, asked ACLU attorney Lee Gelernt if he was aware of any case law that shows you can “second-guess the president of the United States” when the commander in chief finds there is a military conflict.
Oldham specifically asked the lawyer arguing against Trump’s use of the 1798 law to point to a Supreme Court case where the justices determined “you can countermand the president of the United States when he says we are in an armed conflict.”
Gelernt said there wasn’t a case, acknowledging that the 5th circuit’s ruling on the Alien Enemies Act would be precedent setting.
On March 14, Trump signed a proclamation invoking the Alien Enemies Act, declaring that Tren de Aragua “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.”
Trump, 79, said the gang “is undertaking hostile actions and conducting irregular warfare” against the US on behalf of the regime of Venezuelan dictator Nicolas Maduro, “clandestine or otherwise.”
The gang, whose members have allegedly taken over apartment complexes and been involved in the kidnapping and torture of victims in the US, was designated a foreign terrorist organization by the Trump administration in February.
Judge Leslie Southwick, an appointee of former President George W. Bush, asked Gelernt during the hearing why Tren de Aragua’s actions in the US couldn’t be considered an armed conflict.
“It has to be an armed, organized force,” Gelernt responded. “The founders were not looking at this as some subtle clandestine thing.”
Southwick noted: “Here the president is proclaiming that you have – directed by or interwoven with the Venezuelan government – unrecognized, US terrorists.”
“I’m having a hard time drawing the line,” the judge added.
Gelernt insisted that “the founders were concerned with large-scale activity,” dismissing Tren de Aragua’s activities in the US as “isolated crimes” that don’t warrant use of the Alien Enemies Act.
The ACLU lawyer’s argument centered on Trump’s proclamation not specifically indicating that Venezuela is at war with the US, but that the gang is – which Gelernt asserted is not sufficient to use the Alien Enemies Act.
He argued the provision can only be invoked as a “precursor to all-out war.”
“The face of the proclamation does not say we are in a military conflict,” Gelernt told the panel of judges.
Meanwhile, Justice Department Assistant Attorney General Drew Ensign argued Trump used the Alien Enemies Act correctly and that the president’s decision should be given “the utmost deference.”
Southwick asked Ensign to explain “what the role of the president is in the declaration of war and when is it reviewable.”
“As to invasion or predatory incursion… the president is given extraordinary deference and is not reviewable at all,” Ensign argued.
When Southwick asked what part of the use of the AEA is reviewable, Ensign admitted that all the terms are reviewable but maintained “the presidential determination is not subject to review … but if it is, it’s subject to extremely deferential review.”
“TdA is present in over 40 states in this country,” Ensign maintained. “They have taken over entire apartment buildings.”
“The FBI has assessed that it is likely that the TdA will try to carry out targeted assassinations of the Maduro regime… political assassinations of Maduro regime critics in the US,” he continued, making the case that all of this “clearly supports the determination that an invasion and predatory incursion has occurred.”
“This is not an ordinary criminal gang, hopelessly enmeshed with the Maduro regime, carrying out assassinations of critics of the Maduro regime … they are a foreign terrorist organization. It is a big deal, and presents substantial dangers to the US and our public safety.”
On the amount of notice that alleged Tren de Aragua members should be given before they’re deported, the Trump administration said the standard should give migrants seven days to appeal their removal, while the ACLU countered that 30 days notice – the amount of time given to suspected Nazis during World War II (when the Alien Enemies Act was last invoked) – should be allowed.
The panel of appellate judges, which also includes Biden-appointed Judge Irma Ramirez, did not provide a timeline for when they would rule on the case.
The outcome will likely be appealed to the Supreme Court by whichever side the court rules against.
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