When President Donald Trump invoked the Alien Enemies Act (AEA) against alleged members of the Venezuelan gang Tren de Aragua in March, he implicitly asserted that they were “natives, citizens, denizens, or subjects” of a “foreign nation or government” that had launched an “invasion or predatory incursion against the territory of the United States.” But because Trump did not claim that the United States was at war with Venezuela or that Venezuela had invaded this country, it was not clear which “foreign nation or government” he was talking about.
That was one of the puzzles that the U.S. Court of Appeals for the 5th Circuit considered during a hearing on Monday. The case, W.M.M. v. Trump, involves detainees in Texas who argue that Trump improperly relied on the AEA, a rarely used, 227-year-old law, to summarily deport foreign nationals that the government has identified as Tren de Aragua members. Another issue raised by the case is whether federal courts have the authority to decide that question.
They do not, Deputy Assistant Attorney General Drew Ensign told the 5th Circuit, which is the first appeals court to consider whether Trump’s novel use of the AEA makes any legal sense. Several federal judges, including a Trump appointee in Texas, have rejected Trump’s idiosyncratic definition of “alien enemies,” saying it is contradicted by copious historical evidence. But according to Ensign, they had no business making that call. “The president’s determination that the factual prerequisites of the AEA have been met is not subject to judicial review,” he said. Alternatively, he argued, “it’s subject to extremely deferential review.”
Ensign’s main argument does not seem consistent with the Supreme Court’s April 7 decision in Trump v. J.G.G., which held that AEA detainess have a due process right to contest their designation as “alien enemies.” Although the justices did not address the legality of Trump’s AEA proclamation, they noted that “an individual subject to detention and removal under that statute is entitled to ‘judicial review’ as to ‘questions of interpretation and constitutionality’ of the Act,” as indicated by the Court’s 1948 ruling in Ludecke v. Watkins.
“The Supreme Court has made clear that statutory terms can always be reviewed,” Lee Gelernt, an American Civil Liberties Union lawyer representing the AEA detainees, told the 5th Circuit panel, which includes Judges Leslie Southwick, Andrew Oldham, and Irma Carrillo Ramirez. “All we’re asking is that these terms be interpreted, and we think when…you properly interpret them, [the law] requires a military conflict with a foreign government. And since the government itself is not claiming that we’re in a military conflict, that would be the end of the matter in our view.”
Oldham, a Trump appointee, was nevertheless leery of “countermanding the president” when “he says this is an invasion or an attempted invasion.” Gelernt had two responses to that concern. “The government itself is saying we’re not in a military conflict,” he said, “so I think we’re not countermanding the president. You’re simply interpreting the statute.” He added that “if you couldn’t, in your words, ‘countermand the president,’ there’d be no reason to even interpret the statute.”
As Gelernt sees it, interpreting the statute requires understanding its historical context, which included hostile French actions that fell short of full-blown war and the concern that such “predatory incursions” might happen while Congress was out of session and therefore unable to declare war. “The contemporaneous sources are far in our favor,” he said. “The Founders were not looking at this as some subtle, clandestine thing….This was a precursor to all-out war. And that framework, I think, tells you everything. This is about alien enemies. And what alien enemies meant is when we are at war with another nation, we can attribute hostilities to every single citizen.”
By contrast, Gelernt noted, the Alien Friends Act, a now-defunct statute that Congress also enacted in 1798, applied “during peace time” and was aimed at “dangerous individuals who operated in secret machinations,” which more closely resembles the crimes and conspiracies in which Tren de Aragua has been implicated. It is plainly inappropriate, he argued, to invoke the AEA in response to criminal activities that have always been treated as a law enforcement issue rather than a military matter.
“Every single nationality and ethnic group in this country throughout history has been tied to a gang,” Gelernt said. “And they all have been entwined at some point with their foreign countries.” Yet the government “did not invoke the Alien Enemies Act against the mafia in the 1950s and ’60s,” even though “someone could have written a proclamation saying they’re entwined with the government of Italy,” and no previous president has ever before tried to use the law in a context like that. Prior to Trump’s proclamation, the law had been invoked just three times, always in the context of wars.
Southwick, a George W. Bush appointee, also seemed troubled by the implications of Trump’s interpretation. He noted that critics of Trump’s proclamation, including the Cato Institute and the Brennan Center for Justice, warn that his definition of “invasion or predatory incursion” would cover “an enormous number of criminal activities that have some connection to a foreign country.” That argument, he said, “does seem to have some purchase to me.”
At the same time, Southwick expressed sympathy for the government’s view of Tren de Aragua’s activities. “The president is proclaiming” that these “terrorists,” who are “interwoven” with Venezuela’s government, are “undermining…civil society by their actions,” he said. “It may not be preparatory to an invasion, but it is having [similar] kinds of effects within the cities in which they’re operating.”
Defending the logic of Trump’s proclamation, Ensign emphasized Tren de Aragua’s ties to Venezuela’s government, saying the gang is “hopelessly enmeshed with the Maduro regime and carrying out activities, including assassinations of critics of the regime, at the direction of that regime.” But as Gelernt noted, the extent of those ties is a matter of dispute. While the FBI has tended to credit accounts of close collaboration between Venezuelan officials and Tren de Aragu, the rest of the intelligence community has been much more skeptical.
In any event, Gelernt noted, the Trump administration has conspicuously declined to identify Venezuela as a “hostile nation or government,” as the AEA would seem to require. “The government is not claiming we are in armed conflict with Venezuela,” he said, perhaps because “they understand the implications. If we really were in a military conflict with Venezuela, it would mean our military could shoot [Tren de Aragua] members because they’d be combatants. It would mean the Geneva Convention would kick in.” He added that the Trump administration “would have to go to Congress” under the War Powers Resoluton.
In short, Gelernt said, “the government is trying to have it both ways.” It wants to assert that the United States is under attack by a “foreign nation or government” to justify invoking the AEA, but it does not want to say “we’re in an armed military conflict with Venezuela” because of the complications that would entail.
The government “originally argued” that Tren de Aragua itself is “a foreign nation or government,” Gelernt noted. “They’ve changed their position now and [are] trying to say [Tren de Aragua] is entwined with Maduro. But you need to name the country.”
Oldham clearly seemed inclined to uphold Trump’s use of the AEA, while Southwick seemed like he could go either way. But assuming the panel sides with the government, that won’t be the end of the matter. In May, when the Supreme Court enjoined the removal of AEA detainees while their cases are pending, Justice Brett Kavanaugh wrote a concurring opinion saying he would have preferred to go further. “The circumstances call for a prompt and final resolution,” he said, “which likely can be provided only by this Court.”
