Fifth Circuit Weighs Deferring to Trump on Wartime Authority (1)

Conservative members of the Fifth Circuit signaled they might defer to President Donald Trump’s invocation of the Alien Enemies Act, as they wrestled with what else the court would have to rule on if they declined to examine the facts behind his proclamation.

Judge James Ho, a Trump appointee to the court, said the political branches may be better suited to question the use of the wartime law to remove alleged Venezuelan gang members.

“The judiciary is not the only solution to the woes of America,” he said.

Judge Cory Wilson, another Trump appointee, focused on what role the circuit has in considering the law, if the judges don’t examine the facts behind Trump’s declaration. He and other judges pressed Justice Department lawyer Drew Ensign to lay out where the line is on deference to the executive in the case.

Ensign said the court should take the president at his word, and any factual review of the law’s invocation should be “highly deferential.” Chief Judge Jennifer Walker Elrod, a George W. Bush appointee, raised the “British invasion” of bands like The Beatles as a “fanciful” example of when a president might invoke the law.

American Civil Liberties Union lawyer Lee Gelernt warned the court against giving the executive unlimited deference on a law he said can only be invoked during times of war, and wasn’t intended for this scenario.

The case, which the Fifth Circuit heard en banc Thursday, is one of many legal efforts to rein in Trump’s hardline immigration agenda.

A divided three-judge panel in September found the Trump administration couldn’t use the wartime law to justify the removal of alleged members of the Venezuelan Tren de Aragua gang.

The Fifth Circuit began considering the legality of the action after the Supreme Court said in May that the appeals court was wrong to have dismissed an appeal from Venezuelans seeking to block their apparent imminent deportation.

“We recognize the significance of the Government’s national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution,” the high court said in an unsigned order. “In light of the foregoing, lower courts should address AEA cases expeditiously.”

Elrod raised the justices’ order at arguments Thursday, asking about the status of the migrants named as plaintiffs in the case before her court. Gelernt said the ACLU believed all but one of the migrants had been removed from the US through other immigration proceedings. He said they attempted to figure out the remaining migrant’s status ahead of the hearing and weren’t able to get in touch.

US District Judge Fernando Rodriguez Jr. in the Southern District of Texas, a Trump appointee, is among the judges who have ruled against the use of the Alien Enemies Act. But US District Judge Stephanie Haines, another Trump appointee in the Western District of Pennsylvania, has ruled in favor of the law’s use.

The administration has cited the recent arrest of Venezuelan President Nicolás Maduro in arguing that Maduro’s government is intertwined with Tren de Aragua.

“As a result, it is even clearer that the President’s invocation of the Alien Enemies Act was part of a high-level national security mission that exists outside the realm of judicial interference,” the Justice Department said in a Jan. 5 letter to the Fifth Circuit.

The ACLU, which is representing the Venezuelan nationals, said in response that the indictment shows the government believes “Maduro’s alleged actions were not military, but rather criminal offenses properly handled through the justice system.”

The Trump administration’s invocation of the Alien Enemies Act has also come under scrutiny in DC federal court, where Chief US District Judge James “Jeb” Boasberg last year ordered a temporary block on the deportation of the Venezuelan nationals under the law.

Boasberg initiated proceedings into whether he should hold administration officials in criminal contempt as the deportation flights weren’t turned around after his order. The administration has denied violating the court order, and the US Court of Appeals for the DC Circuit in December stayed the contempt inquiry for a second time.

The case is W.M.M. v. Trump, 5th Cir., No. 25-10534, oral argument held 1/22/26.