US court grapples with Trump's powers to deport Venezuelans under obscure wartime law

By Daniel Wiessner

Jan 22 (Reuters) - Judges on a U.S. appeals court on Thursday were divided over whether they can second-guess President Donald Trump's use of a seldom-used 18th century law to deport alleged members of Venezuelan gang Tren de Aragua without court hearings and other safeguards.

The full 5th U.S. Circuit Court of Appeals in New Orleans heard arguments for more than an hour about the scope of the president's powers under the Alien Enemies Act, which allows for citizens of hostile foreign nations to be detained and deported during wartime or in the event of an "invasion or predatory incursion."

A three-judge 5th Circuit panel in a 2-1 ruling in September blocked the Trump administration from removing a group of Venezuelans under the law pending the outcome of their lawsuit, and the full 17-member court agreed to rehear the case. The 5th Circuit is widely considered the most conservative federal appeals court, but the only staunch conservative on the panel was Trump appointee Andrew Oldham, who dissented.

The 5th Circuit is the first appeals court to consider a March 2025 proclamation by Trump invoking the law to justify rapid deportations, and its decision could set important precedent on the limits of Trump's powers to reshape immigration policy.

Trump in the proclamation said Tren de Aragua was closely linked to the regime of Venezuela's leader, Nicolas Maduro, who was seized in a U.S. military operation earlier this month and had engaged in a "predatory incursion" on U.S. soil.

On Thursday, Drew Ensign of the U.S. Department of Justice argued that courts cannot review proclamations issued under the Alien Enemies Act, prompting some of the judges to press him on the outer limits of the president's authority.

Circuit Judge Jennifer Walker Elrod asked whether the president could have used the Alien Enemies Act to remove rock stars from the United States during the "British Invasion" in the 1960s.

"They're sending these musicians over to corrupt young minds and ... the Prime Minister is in on it, and they're coming over here and they're taking over all kinds of establishments," said Elrod, an appointee of Republican former President George W. Bush. "Would you be able to look at that on its face and say it's not credible, or is there not a line like that?"

Ensign said even that would be beyond court review, but it would still be subject to the political process. Circuit Judge James Ho seemed to agree, interrupting Ensign to make the same assertion.

“Your point is not that it’s okay, your point is the solution lies outside the judiciary. The judiciary is not the only solution to the woes of America," said Ho, a Trump appointee.

Lee Gelernt of the American Civil Liberties Union, who represents the plaintiffs, told the court that the Trump administration also had various tools that it could lawfully use to detain and deport criminals and gang members while affording them due process.

"The issue is not whether [Tren de Aragua] is dangerous or whether they're going to be allowed to stay in the country if they're in fact committing crimes," he said.

The case was brought by three men alleged to be members of the Tren de Aragua gang who were detained last year. The ACLU has challenged the government’s claims that they are gang members. On Thursday, Gelernt said two of the plaintiffs have since been removed from the United States under other immigration procedures.

In his proclamation, Trump asserted that Tren de Aragua is a state-sponsored international terrorist organization that has invaded U.S. territory, and said he would use the Alien Enemies Act to swiftly detain and deport its members.

The U.S. Supreme Court ruled in April in a lawsuit filed in Washington, D.C., that challenges to removal under the law must be brought in the federal judicial districts where detainees are being held. The court said it was not resolving the validity of the administration's reliance on that law to carry out the deportations.

Since then, challenges to the president’s invocation of the Alien Enemies Act have been unfolding in courts across the country, and several judges have blocked deportations under the law.

But at least one judge, a Trump appointee in Pennsylvania, said last year that the law could be used as a basis for speedy deportations. The judge said potential deportees must be given at least 21 days' notice and the opportunity to challenge their removals.

The case is W.M.M. v. Trump, 5th U.S. Circuit Court of Appeals, No. 25-10534.

For the plaintiffs: Lee Gelernt of the American Civil Liberties Union Foundation

For the Trump administration: Drew Ensign of the U.S. Department of Justice

Read more:

US appeals court rejects Trump's use of Alien Enemies Act to deport Venezuelans

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