Judges Question Trump’s Use of 1798 Alien Enemy Law

During a recent hearing, two judges from the federal court of appeals expressed skepticism about President Trump’s application of the alien enemy law from 1798.

The U.S. Court of Appeals, which has a conservative lean in the Fifth Circuit, convened on Monday to discuss both the historical implications of the 18th-century law and the arguments presented by lawyers from the Trump administration, who were facing off against attorneys from the American Civil Liberties Union (ACLU).

This legal dispute, taking place in a New Orleans-based court and likely headed to the Supreme Court, seeks to clarify whether Trump was justified in invoking the alien enemy laws to target Venezuelan prison gangs back in March.

At one point, Judge Andrew Oldham, appointed by Trump, inquired whether ACLU attorney Lee Gerellund could cite any case law indicating that a commander could “recertify the U.S. president” amid military conflicts.

Oldham noted that opponents of the 1798 law might reference a Supreme Court ruling that states the judiciary can indeed counter the President when he claims the nation is under armed conflict.

Gelernt acknowledged that the ruling on alien enemy law in the Fifth Circuit would set a precedent, admitting that there aren’t many existing cases on this matter.

On March 14, Trump issued a declaration under the alien enemy law, stating that the Tren de Aragua gang had “convicted, attempted, and threatened an invasion or predatory invasion of U.S. territory.”

Trump, now 79, described the gangs as engaging in “hostile actions and carrying out irregular wars.”

The gang, which allegedly took control of an apartment complex and has been implicated in the kidnapping and torture of U.S. victims, was designated a foreign terrorist organization by the Trump administration in February.

During the hearing, Judge Leslie Southwick, appointed by former President George W. Bush, asked Gerellund why the actions of Tren de Aragua in the U.S. were not categorized as armed conflict.

Gelernt responded, asserting that “it must be an armed, organized force,” adding that the founders had not intended for the law to interpret such situations as subtle or obscure.

Southwick expressed some confusion, stating, “The President declares he is overseen or intertwined by the Venezuelan government.”

Gelernt argued that “the founders were concerned with broad-scale activities,” dismissing Tren de Aragua’s actions as mere “isolated crimes” that did not warrant the use of alien enemy laws.

The ACLU emphasized that Trump’s declaration demonstrates that the gangs pose a threat but doesn’t specifically indicate that Venezuela is at war with the U.S., arguing that the provision should only apply in cases of total warfare.

“The declaration doesn’t say we are in a military conflict,” Gerellund told the judges.

In terms of the Justice Department’s stance, the Attorney General contended that Trump’s invocation of alien enemy laws should be respected and handled properly.

Southwick sought clarification on the President’s role in war declarations and whether those decisions could be reviewed.

Ensign maintained that in matters of invasion or predatory invasion, the President’s decisions receive significant deference and are typically not subject to review.

However, when asked about which conditions could be examined, Minor admitted that all aspects are subject to review, but any scrutiny would be highly biased.

“TDA exists in more than 40 states in this country,” Ensign stated, arguing that the gang had taken over an entire apartment complex.

He mentioned, “The FBI assessed the TDA as likely attempting targeted assassination of critics of the Maduro administration… political assassinations of U.S. critics,” emphasizing that this situation validates the claim of an invasion.

“This is not just a normal criminal gang; it’s deeply entangled with the Maduro regime, carrying out assassinations. They are foreign terrorist organizations, representing a serious threat to the safety of the U.S. and its citizens,” he asserted.

Regarding deportation notice durations for Tren de Aragua members, the Trump administration proposed a standard seven-day notice, while the ACLU has countered with a demand for a 30-day notice.

A panel of appeals judges, including one appointed by Biden, did not specify when they would issue a ruling on the case.

Ultimately, the decision could be escalated to the Supreme Court by either side once the court reaches its conclusion.