Appeals Court Likely Backs Trump on Alien Enemies Act

President Donald Trump’s determined use of the Alien Enemies Act to enable fast-track deportations is likely to get approved by a three-judge appeals court panel, say media reports.

Under the headline, “Appeals court seems likely to back Trump’s deportations under wartime law,’ the Washington Post wrote:

“Can you give me a Supreme Court case that says a federal court can countermand the chief executive on a decision in an armed conflict?” Judge Andrew S. Oldham challenged Lee Gelernt, an attorney with the American Civil Liberties Union. Oldham, who was nominated to the court by Trump during his first term, added later, “Are we allowed to conduct a federal trial to countermand the president when he says this is an invasion?”

Judge Leslie H. Southwick, who was appointed by President George W. Bush, acknowledged that Tren de Aragua may not fit the traditional definition of an invading foreign power. Still, he said, Trump has described the gang’s alleged activities in the United States in ways that could be considered “a preface to an invasion.”

A win at the appeals court may help Trump’s lawyers persuade the Supreme Court to OK his use of the 1798 law.

The New York Postreported:

The conservative-leaning US Court of Appeals for the Fifth Circuit heard arguments Monday for just under an hour from both Trump administration lawyers defending the president’s invocation of the 18th-century act and American Civil Liberties Union (ACLU) attorneys representing some of the alleged members of Tren de Aragua the administration is seeking to remove under the wartime law.

The ACLU’s lawyer argued that the law does not cover the organized mayhem by the government-enabled Tren de Aragua gang from Venezuela:

“It has to be an armed, organized force,” Gelernt responded. “The founders were not looking at this as some subtle clandestine thing.”

Southwick noted: “Here the president is proclaiming that you have – directed by or interwoven with the Venezuelan government – unrecognized, US terrorists.”

“I’m having a hard time drawing the line,” the judge added.

The 1798 law is one of the many sections in U.S. immigration law that have fallen into disuse because their original purposes were no longer relevant. For example, new citizens are still required to swear they were neither Nazi camp guards nor members of the Communist Party of the Soviet Union.

But the 1798 law is now back because Trump says the text covers the Tren de Aragua gang:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.

The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

The justice department’s lawyer, Drew Ensign, told the judges that the Tren de Aragua had plans to murder U.S.-based critics of Venezuela’s dictatorship.