Trump Suffers New Setback on Use of Wartime Deportation Law (2)

A federal appeals court blocked the Trump Administration from deporting alleged Venezuelan gang members under a two-century old wartime law, teeing up the case to return to the US Supreme Court.

President Donald Trump can’t use the Alien Enemies Act of 1798 to deport the men because their presence in the US doesn’t amount to an “invasion” or “predatory incursion” by a foreign nation as required under the law, the 5th US Circuit Court of Appeals ruled late Tuesday.

The 2-1 decision by the conservative-leaning court rejected Trump’s argument that he was entitled to invoke the law because members of the violent Tren de Aragua gang had been sent to the US by Venezuelan President Nicolás Maduro to destabilize the nation.

“A country’s encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt, or to otherwise harm the United States,” according to the New Orleans-based panel. “There is no finding that this mass immigration was an armed, organized force or forces.”

The Supreme Court ruled earlier this year that Venezuelans facing deportation under the Alien Enemies Act must receive notice that they face removal in a “reasonable time and in such a manner” to bring a legal challenge. Several federal judges have ruled that Trump improperly invoked the law, but the Supreme Court has not answered that question.

The decision comes as Trump’s wide ranging crackdown on undocumented immigrants continues to trigger legal challenges across the country, with mixed results. Earlier Tuesday, a judge ruled Trump illegally used the federal troops to help enforce immigration law when he deployed the National Guard to California during protests against his crackdown.

White House spokeswoman Abigail Jackson said in a statement that Trump expects to ultimately prevail in the case.

“The authority to conduct national security operations in defense of the United States and to remove terrorists from the United States rests solely with the President,” Jackson said. “President Trump exercised this lawful authority and employed the Alien Enemies Act to remove enemies of the United States, including vicious TdA gang members, from the country.”

The appeals court and the Supreme Court have both said that the Trump administration can continue to deport accused gang members and terrorists under the usual immigration laws, which require more due process.

The 5th Circuit ruling also comes amid rising tension with Venezuela. Trump on Tuesday said the US military killed 11 “terrorists” when it targeted a boat allegedly carrying drugs from the South American country.

In July, about 250 Venezuelans who were deported to El Salvador by Trump, including accused gang members removed under the Alien Enemies Act, were returned to Venezuela in a prisoner swap involving 10 Americans.

Trump has continued to defend his use of the Alien Enemies Act, which lets the president bypass federal immigration law to deport “alien enemies” when the US is involved in a declared war or a foreign nation has started or threatened an “invasion or predatory incursion.”

The Supreme Court previously blocked the Trump administration from using the law to remove accused Venezuelan gang members being detained in northern Texas, in the same case now on appeal. The justices then advised the 5th Circuit to expedite the case. Oral arguments were held in June.

In their decision, the 5th Circuit noted that the case had already “made an extraordinarily rapid rise to the Supreme Court.” The ruling applies in several states, including Texas and Louisiana, where many immigrants set for deportation are being held.

The decision is a win for the American Civil Liberties Union, which filed the suit on behalf of two accused gang members.

The appeals court did not dispute Trump’s “factual assertions” about Venezuela’s actions, and agreed with his finding that drug-trafficking “is being used as a weapon.” But the majority held that such conduct still does not amount to an invasion or predatory incursion as envisioned by Congress in 1798.

“The completely accurate implication of this finding is that drugs are a scourge and weaken our citizens and our country, but it is not beyond reason that in 1798 an enemy country could try to sicken and physically weaken those within the United States,” the court said. “That would not have been an invasion or predatory incursion then, and it is not one today.”

The judge who dissented, Andrew Oldham, said the majority had failed to give proper deference to Trump’s determinations about a foreign invasion.

“That contravenes over 200 years of legal precedent,” Oldham wrote. “And it transmogrifies the least-dangerous branch into robed crusaders who get to playact as multitudinous Commanders in Chief.”

(Updates with comment from the White House.)

--With assistance from David Voreacos.

To contact the reporter on this story:
Erik Larson in New York at elarson4@bloomberg.net

To contact the editors responsible for this story:
Misyrlena Egkolfopoulou at megkolfopoul@bloomberg.net

Anthony Aarons

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