A panel of federal appellate judges expressed deep skepticism Monday over whether courts can legally second-guess President Donald Trump’s use of the 1798 Alien Enemies Act (AEA) to justify the detention and removal of Venezuelan nationals alleged to be members of the Tren de Aragua (TdA) gang.
During a hearing at the 5th U.S. Circuit Court of Appeals in W.M.M. v. Trump, Justice Department lawyers defended Trump’s proclamation as a lawful exercise of presidential wartime authority, while civil rights attorneys challenged whether the AEA can be used to target gang members absent an actual war with a foreign nation.
The three-judge panel — Judges Leslie Southwick (appointed by George W. Bush), Andrew Oldham (a Trump appointee), and Irma Carrillo Ramirez (appointed by Joe Biden) — gave extended time for oral arguments, suggesting the stakes were unusually high. Judges Southwick and Oldham led most of the questioning.
Southwick opened with a jab at the urgency of the case: “This is supposed to be an emergency,” he said, noting it had been more than a month since the U.S. Supreme Court blocked Trump’s attempt to swiftly deport the Venezuelan detainees without proper notice.
That ruling, referencing another Trump-era case (Trump v. J.G.G.), emphasized that individuals detained under the AEA must receive adequate notice and time to seek habeas corpus relief — rights the detainees argue were denied to them.
Judicial Review Under Scrutiny
Arguing for the Venezuelan detainees, ACLU attorney Lee Gelernt asserted the AEA cannot be used to target gang members absent a military conflict with a foreign government. “The U.S. is not at war with Venezuela,” he said, stressing that Trump’s proclamation did not declare such a conflict either.
But Judge Oldham challenged that premise head-on. “What exactly gives us the right to second-guess the president on this?” he asked.
Gelernt replied that while the Supreme Court has not ruled directly on this issue, it sent the case back for lower court review — implying that courts do have a role in interpreting the statute.
Under the AEA, foreign nationals from hostile nations may be detained or removed if there is a declared war or a “predatory incursion” by a foreign power. Gelernt argued that the law refers specifically to military conflicts with sovereign nations, not actions by non-state gangs.
Southwick asked whether a violent gang like TdA — designated a terrorist group by the administration — could qualify under “predatory incursion,” likening the situation to historical examples such as pirate attacks or Indian raids during the late 1700s.
“It has to be an armed, organized force at war with the U.S.,” Gelernt responded. “And the statute clearly requires a connection to a foreign government.”
Gelernt emphasized that the administration’s argument was based on vague labels, not actual war declarations. “They’re calling it irregular warfare, but without acknowledging a state of war with Venezuela, they avoid the consequences — like triggering the Geneva Conventions.”
Government: President’s Powers Are Not Reviewable
Representing the Trump administration, DOJ attorney Drew Ensign defended the use of the AEA as a legitimate response to a serious national threat. “This is not just any criminal gang,” he said, describing TdA as deeply connected to the Maduro regime and active in at least 40 U.S. states.
Ensign cited intelligence reports alleging that TdA has seized entire apartment buildings and may be plotting to assassinate Maduro critics in the U.S. “TdA is essentially a proxy of the Venezuelan government,” he argued.
Ensign also said the president’s determination that the conditions of the AEA had been met should not be subject to court review. “These are executive judgments entitled to deference,” he insisted.
Southwick pushed back, citing recent Supreme Court decisions that suggest courts can review AEA cases, at least regarding whether detainees received fair notice.
Notice Requirements and Legal Access
Gelernt said the notice given to detainees — often as short as seven days — is inadequate to file complex habeas petitions. He urged the court to require a 30-day window and ensure that notice is also served to attorneys. “You can’t file a meaningful habeas petition with this little time,” he said.
Judge Ramirez, who spoke only briefly during the hearing, questioned whether those detainees who lacked attorneys were given proper access to legal counsel. Ensign replied that ICE provides a list of attorneys “upon request.”
Gelernt countered that such lists are insufficient without timely access and context. “These are serious liberty deprivations under a wartime statute,” he said. “We can’t treat gangs as if they’re foreign militaries just to use emergency powers.”
A Battle Over Presidential Power
The judges appeared divided. Judge Oldham raised hypotheticals about foreign terrorist plots and sleeper cells, asking whether the courts could overrule a president’s declaration of war-like conditions in those cases. Gelernt responded that the president would still need to identify a nation — not just a gang — to invoke the AEA properly.
“This statute has only been used three times, and always during actual wars,” Gelernt said. “The mafia had ties to Italy, but we never used the AEA against them.”
As the court weighs whether Trump overstepped his legal authority, the case could reshape how much deference presidents receive when invoking rarely used emergency powers — and whether courts have any real ability to challenge those claims.
