A federal appeals court has rejected President Donald Trump’s use of an 18th-century law to swiftly deport accused Venezuelan gang members from the United States.
The Fifth Circuit U.S. Court of Appeals in New Orleans ruled Sept. 2 the administration improperly invoked the Alien Enemies Act of 1798 to deport more than 130 men to the notorious CECOT prison in El Salvador and to detain yet others.
Trump justified the action in a March 15 proclamation accusing hundreds of immigrants of being members of the Tren de Aragua gang, which he claimed was conducting “an invasion” and “predatory incursion” perpetrated by the “hybrid criminal state” of Venezuela.
Further deportations were temporarily averted when the American Civil Liberties Union, ACLU of the District of Columbia and Democracy Forward filed a class-action federal lawsuit challenging Trump’s use of the act.
The 2-1 appeals court ruling concurred with the civil rights attorneys and with lower-court rulings.
The 2-1 appeals court ruling concurred with the civil rights attorneys and with lower-court rulings that the law never was intended for use against immigrant gang activity.
The act grants a president wide-ranging authority to detain and deport foreigners suspected of subversive acts during times of declared war or when one or more nations is attempting to invade the U.S. It was last used during World War II for the mass internment of Americans and immigrants of German, Japanese and Italian descent.
The administration’s position has been that a president’s use of the act cannot be challenged and is justified because the nation is under siege — in this instance by a Venezuelan gang.
But the appellate court said the administration’s definition of “invasion” does not line up with the concepts of “declared war” or “predatory incursion” spelled out in the act.
Leslie Southwick
“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,” Judge Leslie Southwick wrote for the two-judge majority.
Southwick was appointed to the Fifth Circuit in 2007 by President George W. Bush.
And the administration has not demonstrated the Venezuela detainees were part of “an armed, organized force or forces” or that they were sent by Venezuelan President Nicholas Maduro, he added. “Had we determined TdA (the gang) was engaged in either an invasion or a predatory incursion, the findings in the proclamation that such actions were being directed at least in part by the foreign Maduro regime would satisfy the requirement that those actions be by a government or nation. We held instead that TdA was not the kind of organized force or engaged in the kind of actions necessary to constitute an invasion or predatory incursion.”
Andrew S. Oldham
Judge Andrew S. Oldham wrote a blistering dissent chastising his colleagues for questioning Trump’s use of the act: “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.”
Nor should the lack of evidence backing claims of invasion be held against the administration, Oldham added.
“First, we do not know the president’s evidence. The president need not — and often should not — disclose the national-security secrets upon which he is relying. That is as true today as it was during the Adams administration; and the president’s reluctance to disclose every bit of national-security evidence underlying his decisions does not mean he has no evidence.”
Oldham is a 2018 Trump appointee to the Fifth Circuit Court. He previously served as general counsel to Texas Gov. Greg Abbott.
But the Fifth Circuit majority made it clear the Alien Enemies Act is intended for use exclusively in times of war and cannot be invoked to detain and deport immigrants, ACLU attorney Lee Gelernt said in a PBS News report.
“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 president has faced numerous legal ups and downs in his quest to use the law. District judges in numerous states have ruled against the administration since the class-action lawsuit was filed in March.
The U.S. Supreme Court has weighed in twice, first allowing the deportations under the act to continue and then ordering them stopped. In both instances, justices left room for further challenges and demanded Venezuelan detainees be granted due process to contest their cases.
The administration now has the option of appealing to the full Fifth Circuit or to go straight to the Supreme Court for relief.
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