Immigration and administration lawyers on Monday battled over whether President Donald Trump can use an 18th century wartime act against a Venezuelan gang in a case that is likely to ultimately be decided by the U.S. Supreme Court.
The attorneys sparred before a three-judge panel of the 5th Circuit Court of Appeals in New Orleans, the latest step in a tangled legal battle over Trump's March invocation of the Alien Enemies Act of 1798 against the Tren de Aragua gang.
The law has only previously been used during World Wars I and II and the War of 1812. ACLU attorney Lee Gelernt told the three-judge panel that Trump's use of it is inappropriate. "This has only been invoked three times in major, major wars, and now it's being invoked in connection with a gang," Gelernt said.
Deputy Assistant Attorney General Drew Ensign, arguing for the administration, said that courts cannot second-guess a president's determination that the U.S. faces a threat from abroad and requires extraordinary measures to protect itself. He noted that the only time the high court weighed in on the act was in a case that dates from after fighting in Europe ended in World War II, when the court said it could not second-guess then-President Harry Truman's assertion that suspected Nazis should still be held under the act because the war was still continuing.
"The president is due the utmost deference" in matters of foreign affairs and security, Ensign said.