A federal appeals court on Thursday considered whether the United States was in fact suffering an “invasion” by the “hybrid criminal state” of Venezuela, as President Trump argued in March when he invoked an 18th century war power to deport migrants.
In what is known as an “en banc” hearing, all 17 active-status judges from the U.S. Court of Appeals for the Fifth Circuit heard roughly an hour of arguments about whether the administration could lawfully use Mr. Trump’s proclamation to summarily deport immigrants it accused of having ties to a violent Venezuelan gang under the Alien Enemies Act, a 227-year-old wartime law.
In September, a three-judge panel of the court ruled 2 to 1 that Mr. Trump’s proclamation had wrongly declared an “invasion or predatory incursion,” but the full court agreed to rehear the matter this week.
Mr. Trump’s deportations under the Alien Enemies Act represent a small but highly contested fraction of the roughly 500,000 immigrants he has expelled since returning to office. The effort to put his military and national security powers in the service of his immigration agenda represents one of his most aggressive assertions of presidential power, one that has led to a prolonged clash with the courts.
When the United States is in a declared war, or faces invasion or predatory incursion, the Alien Enemies Act gives the president the power to arrest and deport citizens of hostile nations who are at least 14 years old. The Trump administration has argued that members of Tren de Aragua, a Venezuelan gang, have taken over apartment complexes and committed enough acts of violence that their presence amounts to an “invasion,” one that is backed by the Venezuelan state.
On Thursday, the government argued that Mr. Trump’s proclamation was “conclusive” and that the judges would be overstepping their role to second-guess its findings about what constituted an invasion.
That prompted a hypothetical question from Chief Judge Jennifer Walker Elrod, an appointee of President George W. Bush’s. “What if the proclamation said we’re having a British invasion? They’re sending all these musicians over to corrupt young minds, and the Prime Minister is in on it?” she asked, referring to the influence of the Beatles and other British rock groups on U.S. popular culture during the 1960s.
“Is there some point where it becomes preposterous on its face?” she continued. “Or is it always defer, defer, defer?”
Drew Ensign, a lawyer for the Trump administration, responded that it would be up to Congress, not the courts, to push back.
“That is a question for the political branches,” he said. “The solutions are political.”
While the law has been used by presidents only during three declared wars, Mr. Ensign noted that its text also gave the president special deportation powers if an invasion were merely “attempted” or “threatened.” He cited a case in which the Supreme Court allowed President Harry S. Truman to expel a German immigrant and Nazi propagandist using the act after World War II had already ended.
Lee Gelernt, a lawyer for the American Civil Liberties Union, which has been representing three Venezuelan detainees and sued over the administration’s effort to use the statute, argued that Mr. Trump was misusing a wartime authority and that the courts had the power to step in.
The Alien Enemies Act, he said, was not “a blank check” from Congress “for the president to use his war powers any time he considers it valuable.” He noted the array of other tools, such as criminal prosecution and immigration courts, that the government had to deal with members of Tren de Aragua, the Venezuelan gang.
The A.C.L.U. has also questioned how the administration has gone about identifying members of Tren de Aragua on the basis of their “urban street wear” and tattoos. After the administration rushed to send planeloads of deportees to a maximum-security prison in El Salvador, a district court judge in Washington opened an inquiry into whether administration officials might be guilty of contempt for refusing to turn three of the planes around.
The Supreme Court has made two preliminary rulings on the Alien Enemies Act, first requiring the government to give detainees more due process and then pausing the deportations altogether while litigation over the statute’s use proceeded through the courts.
But the court has not yet ruled on whether Mr. Trump’s use of the act is itself legal. A majority of the justices said they wanted to first hear from the judges of the Fifth Circuit on that question. The hearing on Thursday offered a preview of arguments that were likely to reach the Supreme Court — the appeals court is expected to rule in the coming weeks.
Judge James C. Ho, one of the six Trump appointees on the court, said that for the purposes of the Alien Enemies Act, Mr. Trump’s proclamation was itself sufficient to satisfy the statute’s requirements, comparing it to a congressional declaration of war. “Declaration comes from Congress.” he said. “Invasion from the president.”
Since the March proclamation, Mr. Trump has taken further steps to militarize his approach to Venezuela. The United States began attacking boats, some off the coast of Venezuela, that it alleged were trafficking in drugs. Experts say the strikes amount to extrajudicial killings that violate the laws of armed conflict. In January, U.S. forces captured President Nicolás Maduro of Venezuela and spirited him away from Caracas in the middle of the night to be prosecuted for alleged drug trafficking and other crimes.
Other national security claims that the administration has made about Venezuela have turned out to be dubious. A declassified C.I.A. memo rejects one of the core claims of Mr. Trump’s March Alien Enemies Act proclamation — that Mr. Maduro’s government controls the actions of Tren de Aragua.
In its filings, the government argued that Mr. Maduro’s arrest made “even clearer that the president’s invocation of the Alien Enemies Act was part of a high-level national security mission that exists outside the realm of judicial interference.”
That argument was discussed only briefly at Thursday’s hearing. Mr. Ensign reiterated that Tren de Aragua “is intimately tied up with the Maduro regime,” while Mr. Gelernt pointed out that Mr. Maduro’s removal from power could therefore serve to lessen the threat.
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