Appeals court weighs 1798 law for Trump deportations of Venezuelans
The Supreme Court paused the deportations in April while the case is litigated, to give detainees a chance to dispute their gang membership, without ruling on whether Trump was justified in using the law.
In returning to the case June 30, judges at the 5th U.S. Circuit Court of Appeals based in New Orleans focused on whether Tren de Aragua's actions in the U.S. qualify under the statute as "predatory incursion."
American Civil Liberties Union lawyer Lee Gelernt said the law was drafted for military conflicts with other countries and has been invoked only three times during declared wars to argue that it does not apply to the current situation.
"It has to be an armed, organized force," Gelernt said, not clandestine acts of secretive organizations. "This was a precursor to all-out war."
Drew Ensign, deputy solicitor general with the Justice Department, said Trump was within his power to declare anyone to be a member of the gang, label the gang terrorists and deport them.
"The president's proclamation is plainly a lawful exercise of his extensive powers under the Alien Enemies Act," Ensign said. Trump's determinations are "subject only to extremely limited and deferential review," Ensign said.
Judge Leslie Southwick, who was appointed by George W. Bush, said the gang might not be preparing for a larger military invasion, but engaging in activities similar to the threats from enemy ships or Native Americans when the statute was written.
"I'm having a hard time drawing the line," Southwick said. "Why wouldn't this be similar to what privateers were doing, Indians were doing, which is a temporary incursion into some area causing damage and escaping back out?"
Judge Andrew Oldham, who was appointed by Trump, asked repeatedly whether the Supreme Court had ruled the judges could countermand the president's order. Gelernt eventually acknowledged the court had not.
Judge Irma Carrillo Ramirez, who was appointed by Joe Biden, asked whether detainees had enough time to file a notice to fight their deportation in court.
After the Supreme Court's decision, Ensign said detainees are now given seven days to contest their membership in the gang. Gelernt said it is very difficult for detainees to contact lawyers and build their cases so they deserve 30 days.
The judges gave no deadline for when they would decide the case.
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