A federal appeals court blocked President Donald Trump late Tuesday from using the war-related Alien Enemies Act to quickly remove migrants from the country.
In a 2-1 decision, a panel of the U.S. Court of Appeals for the 5th Circuit said it did not find an “invasion or predatory incursion” to justify Trump’s invoking the centuries-old national security law to target purported members of the international gang Tren de Aragua.
The court issued an injunction that prevents Trump from using the law to deporting migrants who filed the case and others who are in the same situation, but it pointed out that the administration could use “any other statutory authority for removing foreign terrorists.”
The 1798 law states that noncitizens age 14 and up can be removed as “alien enemies” whenever there is “a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion” is tried “by any foreign nation or government.”
Trump in a March declaration said among other reasons that Tren de Aragua was engaging in mass illegal immigration to the United States to further the Venezuelan government’s goal of destabilizing democratic countries, in part using drug trafficking as a weapon against U.S. citizens.
Judge Leslie Southwick, an appointee of George W. Bush, wrote the majority opinion that examined the reasons listed to invoke the law and concluded they “do not support that an invasion or a predatory incursion has occurred.”
“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,” Southwick wrote. “There is no finding that this mass immigration was an armed, organized force or forces. It is an action that would have been possible when the AEA was written, and the AEA would not have covered it. The AEA does not apply today either.”
And while the panel accepted that drug-trafficking is being used as a weapon, “we hold it is not within even an updated meaning of invasion or predatory incursion.”
“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. That would not have been an invasion or predatory incursion then, and it is not one today,” Southwick wrote.
The decision from the three-judge panel, part of an appeals court with a conservative reputation, could be a significant setback to the Trump administration and its implementation of the Alien Enemies Act.
A decision from the Supreme Court in April had already made Trump’s use of the Alien Enemies Act more complicated by requiring the government to allow migrants a chance to challenge their removal under the law.
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