The government’s stationing of immigration detention hubs in the South — an area covered by one of the nation’s most conservative appeals court systems — has all but guaranteed that the Trump administration receives judicial endorsement of its rushed removals for people deemed “alien enemies,” as a closely watched case showed on Monday.
The discussion before a three-judge panel of judges on the 5th Circuit Court of Appeals, often described as the most conservative leaning in the country, showed that the majority seemed reticent to even question whether President Donald Trump could tap a 227-year-old law that supercharges Immigration and Customs Enforcement deportations.
The mere topic of illegal immigration drew strong reactions from Judge Andrew Stephen Oldham, a Trump appointee whose time as Texas Gov. Gregg Abbott’s general counsel while he was still the state’s attorney general put him on the front lines of the state’s clash with the federal government and border crossers.
Oldham repeatedly interrupted the American Civil Liberties Union attorney advocating for undocumented detainees who face rapid removal to a notorious El Salvador prison accused of torturing inmates, pushing back against any notion that federal judges could “second guess the president of the United States.”
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At one point during the hour-long hearing, Oldham suddenly veered into uncharted waters — asking whether Trump’s invocation of the 1798 Alien Enemies Act could be justified following reports that Iran’s top Shia cleric issued a fatwa calling on Muslims to assassinate Trump. Oldham questioned if “sleeper cells” of Iranian agents could reasonably be deemed “alien enemies.”
And when ACLU lawyer Lee Gelernt said that would depend on the details of that hypothetical situation, Oldham echoed the Justice Department lawyer’s attempts to justify the federal government’s narrative — that the presence of Venezuelan gang Tren de Aragua in the United States is akin to a military incursion.
“What about taking over an apartment complex?” Oldham asked, referencing a favorite MAGA talking point: the way Venezuelan gang members temporarily reigned over a building in Aurora, Colorado.
Although migrants living in states all over the country have been swept up in militarized ICE raids, the nation’s deportation machine has funneled many of them to private prisons in Louisiana and Texas — where planes can more quickly transport them to Central and South America. And while several major cases in D.C. and Maryland have called into question the rushed removals of Venezuelans branded “enemy aliens” — even those seeking asylum to escape crime — the government’s placement of these detainees in the American South has directed any legal challenges to a judiciary staffed with some of the most conservative jurists in the nation.
Judge Leslie Southwick, a George W. Bush appointee and the senior-most jurist on the panel, had his own misgivings about trying to rein in the Trump administration. The judge seemed unconvinced, even when Gelernt leaned on the conservative judicial philosophy of originalism — with the ACLU lawyer arguing that the government is severely stretching the common understanding the nation’s founders had when they created the 1798 Alien Enemies Act to counter worries about French invasion at a time when Congress would not be in session to handle the threat.
Southwick wondered aloud whether the presence of Venezuelan gang members in the United States, which he said could be “undermining our democracy,” would be similar somehow to the actions of French privateers or Native American tribes wreaking havoc by conducting “temporary incursions.”
The civil rights lawyer tried to make clear that paid soldiers and pirates working directly for a foreign government explicitly threatening warfare — and sovereign tribes fighting to retake land — were remarkably different from a criminal gang.
“The founders were concerned with large scale activities … this was solely about war and serious military conflict, at a size where we would respond with the military,” he said, pointing out that early American politicians separately passed the similarly inspired Alien Friends Act to deal with potential threats during peace time until that law was allowed to expire.
“Even the government is not really arguing that this is military conflict … they’re trying to broaden what ‘predatory incursion’ is,” Gelernt added, making the case that the Trump administration is holding back from properly invoking the law, which would require essentially declaring war with Venezuela and facing all the consequences that follow.
During the hearing, that argument led to a separate discussion about whether or not Tren de Aragua is in some way tied to the Venezuelan government. Drew Ensign, a high-ranking Trump official who handles immigration cases at the DOJ, pointed to an FBI assessment that raised that possibility.
Meanwhile, Gelernt attempted to steer the judges toward the fact that the country’s own spy agencies have largely determined the gang isn’t a Venezuelan government proxy, unlike the relationship Iran has with terrorist organizations like Hamas and Hezbollah.
However, that drew prompt pushback from Oldham, who doubted whether any judge anywhere could “counter the president’s threat assessment.”
The only reprieve for the many detained migrants who are fighting to avoid exile to a nation where they have no ties seemed to come from Judge Irma Carrillo Ramirez, a Biden appointee. Although she remained quiet for most of the hearing, Ramirez chimed in to probe the way ICE changed its notification procedures for migrants that are about to be forcibly removed on government planes. The agency changes came after the Supreme Court chided the agency and provided migrants an opportunity to challenge their designation as “alien enemies” over such mundane signifiers as Michael Jordan tattoos.
During the hearing, Ensign argued that detainees now have a fair shot to file habeas corpus lawsuits to counter the accusations before being sent abroad.
“That is not something that’s terribly difficult to do in seven days,” he said.
But Ramirez noted that jailed migrants have submitted sworn statements explaining why they need more time. Gelernt later noted that “nobody has filed one without counsel,” and that such lawsuits are more difficult to file for people without legal experience — and especially when ICE keeps detainees from speaking to attorneys.
“It’s easy for him as a lawyer. It is not easy for these detainees, and it is not easy for them to reach lawyers,” he said.
But when Gelernt referenced a 2004 Supreme Court decision concerning the due process rights of an American captured in Afghanistan during the Global War on Terror, Oldham once again cut him off.
“Hamdi involved an American citizen and it was a habeas case,” the judge interjected.
There are indications that this 5th Circuit decision could provide sweeping legal guidance on the Trump administration’s aggressive use of the wartime powers of the 1798 Alien Enemies Act during peacetime. Judges asked whether this appellate court — which has jurisdiction over Louisiana, Mississippi and Texas, and thus most of the private jails being used to imprison these migrants — should adopt a definition used by a Pennsylvania federal judge who has become one of the only ones to side with the White House on this issue.
U.S. District Judge Stephanie Haines, who Trump appointed during his first term, supported the administration’s invoking of these wartime powers in May when she wrote that the State Department’s designation of Tren de Aragua as a “foreign terrorist organization” is “a designation that heavily supports the conclusions within the Proclamation that TdA is a cohesive group united by a common goal of causing significant disruption to the public safety of the United States.”
“That’s certainly a definition the United States can live with,” Ensign told the judges on Monday.
But that drew some hesitation from Southwick, who noted that the libertarian-leaning Cato Institute and progressive Brennan Center for Justice have both warned that this kind of overbroad definition could absorb all kinds of everyday crime in the United States — and vastly increase the aggressive powers the federal government can exert on the populace.
“That does seem to have some purchase to me,” Southwick said.
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Jose Pagliery is a reporter at NOTUS.
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