A federal appeals court heard arguments Thursday on whether President Donald Trump can invoke a law written in 1798 to deport members of a Venezuelan criminal gang. All 17 judges of the Fifth Circuit Court of Appeals in New Orleans examined whether the Alien Enemies Act — a wartime statute never before used against a criminal organization — applies to Tren de Aragua.
The case tests whether presidents can deploy emergency wartime authorities against criminal organizations when claiming national security threats. The Trump administration has already deported 252 Venezuelans under the act to a prison in El Salvador.
Government argues broad presidential power
An assistant attorney general told a federal appeals court Thursday that the president can invoke a wartime law against nearly any perceived threat without courts intervening. “These sort of questions of foreign affairs and the security of the nation are specifically political issues,” Drew Ensign said before the Fifth Circuit Court of Appeals in New Orleans.
The Trump administration’s argument over executive power emerged during oral arguments on whether the Alien Enemies Act of 1798 can be used to deport members of Tren de Aragua, a Venezuelan gang. All 17 judges of the appellate court heard the case, which has already prompted two emergency interventions from the U.S. Supreme Court.
The law has been invoked only three times in American history: during the War of 1812 and both world wars. A three-judge panel of the Fifth Circuit previously ruled it cannot be deployed against a criminal organization, but the administration appealed to the full court.
Judge’s Beatles question reveals doubts
Judge Jennifer Walker Elrod of the Fifth Circuit raised the stakes with a hypothetical. Could a president invoke the 1798 law against the Beatles, she asked, referencing the 1960s moral panic over the arrival of British bands?
Ensign answered yes. The president has that power, he said, and courts could not stop him. Congress alone could check such action.
The judge’s question highlighted the core constitutional issue: if the law can apply to a Venezuelan gang, what limits constrain its use?
The statute’s scope and application
The ACLU offered a narrower reading. “Tren de Aragua is committing ordinary crimes that are being dealt with by law enforcement,” Lee Gelernt told the judges. “The Alien Enemies Act is about wartime and the military,” not criminal activity.
Gelernt argued the law cannot reach gang activity, no matter how serious. The administration had deported 252 Venezuelans under the act to a prison in El Salvador before legal challenges mounted.
The Trump administration contends that Tren de Aragua acts under the direction of Venezuela’s recently ousted president, Nicolas Maduro. Some law enforcement analysts have challenged this assertion, questioning whether Maduro’s government actually directs the gang.
Ensign defended the administration’s legal theory by arguing the law applies when a foreign threat poses an “invasion” or “predatory incursion.” A predatory incursion, he explained, requires less evidence than an invasion and can occur when foreign activity enters U.S. territory—citing precedent involving foreign fishing boats in U.S. waters.
Supreme Court’s previous intervention
The U.S. Supreme Court has entered this case twice without addressing the core constitutional question. Last year, the justices ruled that anyone removed under the act must have a “reasonable” opportunity to challenge their designation as a gang member in court.
The high court then issued a midnight ruling that halted removal flights and barred further deportations under the act until the Fifth Circuit established proper procedures for challenging designations.
The Supreme Court has left the fundamental constitutional question to the Fifth Circuit: whether a 228-year-old law for military enemies can govern modern immigration enforcement. The appellate court has not yet announced when it will rule.