A federal appeals court has vacated its previous ruling against President Trump’s attempt to deport members of the Tren de Aragua gang under the Alien Enemies Act and scheduled the case for a rehearing before the full slate of judges.
A three-judge panel of the 5th U.S. Circuit Court of Appeals had decided in early September that Mr. Trump was wrong to declare immigration from Tren de Aragua part of a foreign invasion or predatory incursion.
But the majority of the full circuit court voted to erase that ruling and rehear the case en banc, the court said Tuesday in an order.
“The issue is obviously compelling,” wrote Judge James C. Ho, a Trump appointee who backed the rehearing.
Judge Leslie Southwick, a George W. Bush appointee who wrote the main opinion in the earlier ruling, opposed the rehearing, saying he and his two colleagues at the time gave the matter a thorough go-over. He said the next step for the case should be the Supreme Court.
“I see no purpose to be served by requiring this case to linger here for the many months that en banc rehearing would entail. The parties deserve conclusive answers that only the Supreme Court can give,” Judge Southwick said.
But Judge Ho said the Department of Justice is the party that would be burdened by a delay and it supports the rehearing.
The case has become a major test of Mr. Trump’s presidential powers and emerged as the leading legal challenge to the president on the issue. A number of other federal appeals courts have paused similar cases to await the 5th Circuit’s action.
Rehearing the case means they’ll be on hold even longer.
Mr. Trump was trying to use the Alien Enemies Act to speed up deportations faster than the regular immigration law allows. The 1798 law allows for quick removal of foreign nationals whose home countries are at war with the U.S. or engaged in an invasion or predatory incursion.
Mr. Trump says Tren de Aragua is acting on behalf of the Venezuelan government as its members streamed into the U.S. in the previous four years.
Judge Southwick said there’s a question as to the exact ties between Venezuela’s government and Tren de Aragua, but no matter the relationship, the wave of migrants didn’t qualify as an invasion or incursion.
“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.
Judge Andrew Oldham, a Trump appointee who has been mentioned as a possible Supreme Court pick, 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.
The Alien Enemies Act 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.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.