A federal appeals court issued a searing rebuke to President Trump late Tuesday, ruling that he overstepped his deportation powers when he used a centuries-old law to speed up the deportation of Venezuelan gang suspects.
Judge Leslie Southwick, writing the key opinion in the 2-1 decision by the 5th U.S. Circuit Court of Appeals, rejected Mr. Trump’s conclusion that the Alien Enemies Act applies to members of Tren de Aragua, saying the gang is not engaged in a war, invasion or predatory incursion of the U.S.
The judge, a George W. Bush appointee, said Mr. Trump has other powers to speedily deport foreigners who are part of terrorist organizations or otherwise threaten public safety, but not the Alien Enemies Act here.
“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,” the judge 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,” he wrote.
The court issued an injunction blocking deportations under the AEA.
The ruling is a significant blow to Mr. Trump’s legal position on deportations. He had flexed the AEA as a way to circumvent the normal deportation system, where the checks to prevent wrongful deportation can be time-consuming.
Judge Andrew Oldham, a Trump appointee who has been mentioned as a possible Supreme Court pick for the president, issued a blistering dissent.
He said the ruling was an unforgivable intrusion on the president’s powers.
“Time and time and time again, the Supreme Court has instructed that the president’s declaration of an invasion, insurrection, or incursion is conclusive. Final. And completely beyond the second-guessing powers of unelected federal judges,” Judge Oldham wrote.
He said his colleagues were treating Mr. Trump differently by questioning his conclusions and determinations.
“That contravenes over 200 years of legal precedent. And it transmogrifies the least-dangerous branch into robed crusaders who get to playact as multitudinous Commanders in Chief,” Judge Oldham wrote.
The AEA was at the heart of Mr. Trump’s most controversial deportations — the flights on March 15 that took Venezuelan migrants to El Salvador’s terrorist prison.
Those flights produced multiple lawsuits, led to several Supreme Court rulings and spawned the ongoing fight over Kilmar Abrego Garcia, who was on one of the flights though he was not actually ousted under the AEA.
Mr. Trump says the 1798 law — a survivor of the Alien and Sedition Acts — applies to Tren de Aragua, which the government has now declared a terrorist organization.
He said it is acting on behalf of the socialist regime of Nicolas Maduro in Venezuela, infiltrating its members into the U.S. to deal drugs and to smuggle and traffic people.
The AEA allows an administration to speedily deport someone deemed to be a native, citizen or subject of a nation with whom the U.S. is at war, or deemed to be engaged in an “invasion” or “predatory incursion.”
Mr. Trump argued the numbers of Venezuelans, TdA’s relationship with that country’s government and the activities of TdA members here in the U.S. qualified.
Judge Southwick said those conclusions deserve deference but can still be questioned by judges, which is what he did.
In his ruling he also suggested that the government’s current practice of giving seven days for a migrant to challenge deportation under the AEA could be sufficient, though he said there’s room for more argument.
Judge Irma Ramirez, a Biden appointee, joined Judge Southwick in the main part of his ruling but dissented on the seven-day standard, saying that was too short.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.