On Monday, a legal confrontation took place between immigration attorneys and federal administration lawyers regarding President Donald Trump’s invocation of an 18th-century law against a Venezuelan criminal organization, known as the Tren de Aragua. The contentious issue over the use of the Alien Enemies Act of 1798 is anticipated to reach the U.S. Supreme Court for a decisive resolution.
The attorneys presented their arguments to a three-judge panel of the 5th Circuit Court of Appeals in New Orleans. This case marks another chapter in the complex legal debate following Trump’s decision in March to employ the Alien Enemies Act against the gang, a measure historically tied to wartime circumstances during conflicts like World Wars I and II and the War of 1812. The American Civil Liberties Union (ACLU) attorney, Lee Gelernt, firmly argued that the president’s application of this law is misplaced. Gelernt pointed out, “This has only been invoked three times in major, major wars, and now it’s being invoked in connection with a gang.”
Representing the administration, Deputy Assistant Attorney General Drew Ensign defended the president’s actions. He insisted that courts should not challenge a president’s judgment concerning international threats and the extraordinary steps needed to safeguard national security. Ensign mentioned a past Supreme Court case from the aftermath of World War II, during which the Court declined to question then-President Truman’s continued use of the law to detain suspected Nazis, postulating that the president deserves the “utmost deference” on matters of foreign affairs and national security.
The Supreme Court has already examined Trump’s use of the Alien Enemies Act twice for more procedural matters. Initially, the Court ruled that those accused of being gang members should have a “reasonable” time to contest that label in court. However, it was determined that challenges to their deportation could only occur where they were held, effectively lifting a nationwide injunction against such deportations imposed by a Washington federal judge. That judge had previously found the administration possibly in contempt for not adhering to orders and continuing transfers of detainees to El Salvador.
Subsequently, after various legal triumphs across the country by the ACLU and allied groups that resulted in injunctions against deportations under the statute, the Supreme Court intervened once more. In April, it issued an extraordinary late-night decision halting deportations in a specific area in north Texas where no active injunction against removal was in place. With several lower courts ruling the Alien Enemies Act inappropriate for use against a gang, the Supreme Court instructed the 5th Circuit to evaluate the law’s applicability and to determine how much time detainees should have to contest their classification.
The government initially provided limited notice and argues now for a standard of seven days to appeal. The ACLU is pushing for a 30-day period, the same allowance given to suspected Nazis during World War II. The panel judging Monday’s arguments includes judges appointed by Presidents Trump, George W. Bush, and Biden. Its decisions could be escalated either to the conservative-leaning full 5th Circuit or directly to the Supreme Court. Trump contends that the Tren de Aragua operates under Venezuelan government influence, which justifies invoking the Act to counter an “invasion” or “predatory incursion.”
In opposition, the ACLU disputes the administration’s claims, asserting that any ties between the gang and Venezuela’s government are weak. Notably, 17 distinct intelligence agencies reportedly found scant evidence of coordination between the gang and the Caracas administration. Gelernt argued that under the current rationale, this law could ostensibly be used against any criminal group with even slight foreign ties, such as the Mafia, which have existed in the U.S. over two centuries.