A divided federal appeals court on Tuesday said President Donald Trump’s use of the Alien Enemies Act to rapidly deport alleged Venezuelan gang members is unlawful and blocked its use in several southern states, issuing another blow to Trump’s invocation of the 18th century law.
The Fifth US Circuit Court of Appeals said in a 2-1 ruling that Trump cannot move forward with using the sweeping wartime authority for deportations in Texas, Louisiana and Mississippi. The president has not leaned on the 1798 law for removals since mid-March, when his invocation of it sparked the first in a series of legal challenges.
Tuesday’s ruling is notable because it’s likely the vehicle through which the issue will reach the Supreme Court for the justices to potentially review Trump’s use of the law in full.
The Fifth Circuit’s opinion, penned by Judge Leslie Southwick and joined by Judge Irma Carrillo Ramirez, concluded that a “predatory incursion” by members of the gang, Tren de Aragua, had not occurred, as Trump claimed as a reason for invoking the act.
“We conclude that the findings do not support that an invasion or a predatory incursion has occurred. We therefore conclude that petitioners are likely to prove that the AEA was improperly invoked,” Southwick wrote.
Lee Gelernt, an attorney with the American Civil Liberties Union who represents Venezuelan detainees in north Texas who are challenging Trump’s effort to deport them under the Alien Enemies Act, said that the appeals court “correctly held that the administration’s unprecedented use of the Alien Enemies Act was unlawful because it violates Congress’ intent in passing the law.”
“This is a critical decision upholding the rule of law and reigning in the administration’s attempt to militarize immigration,” Gelernt said.
The case, arising from the Northern District of Texas, landed before the Supreme Court earlier on an emergency basis. In May, the high court paused Trump’s use of the Alien Enemies Act for deportations in that specific judicial district and sent the case back to the Fifth Circuit to consider the migrants’ claims that they weren’t receiving sufficient notice of the administration’s intent to deport them under the law.
Those claims stemmed from a separate order issued by the Supreme Court earlier this year in which the justices, without deciding whether Trump lawfully invoked the act, said he could continue to use it for now but that migrants targeted under it are entitled to notice and an opportunity to challenge their impending removal in court.
The New Orleans-based appeals court concluded on Tuesday that the government’s decision to give migrants seven days’ notice before removing them under the act “appears to comply with the Supreme Court’s directive.” But that part of the court’s ruling was joined only by Southwick, an appointee of former President George W. Bush, and Judge Andrew Oldham, a Trump appointee.
Ramirez, an appointee of former President Joe Biden, said in a partial dissent that “seven days’ notice is not reasonably calculated, under all the circumstances, to afford detainees, especially those who are unrepresented, due process under the AEA.”
“At least twenty-one days’ notice is required,” she wrote.
While other federal judges have ruled against Trump in his effort to use the act to speed up deportations of the alleged gang members, Tuesday’s ruling from the 5th Circuit represents the first time an appeals court has looked this closely at the issue.
In addition to shooting down Trump’s claim that there was “predatory incursion” by the gang in the US, the majority ruling said that Trump also incorrectly said that an “invasion” was occurring and warranted his use of the wartime authority. The law is designed to be invoked if the US is at war with another country, or a foreign nation has invaded the US or threatened to do so.
The migrants “are likely to succeed in demonstrating that the proclamation cannot be supported either by the existence of a declared war or an invasion,” Southwick wrote, referring to Trump’s presidential proclamation invoking the law.
This story has been updated with additional details.
