A panel of judges at the 5th U.S. Circuit Court of Appeals, one of the country’s more conservative courts, heard arguments Monday over whether the Trump administration can invoke the Alien Enemies Act to deport Venezuelan migrants it considers to be part of the Tren de Aragua criminal gang.
“This has been invoked three times only in major, major wars,” argued ACLU attorney Lee Gelernt regarding the Alien Enemies Act, an 18th century wartime authority used to remove noncitizens with little-to-no due process. “The government is now suggesting you can invoke it with a gang.”
The Trump administration touched off a legal battle in March when it invoked the Alien Enemies Act to deport two planeloads of alleged migrant gang members to the CECOT mega-prison in El Salvador by arguing that Tren de Aragua is a “hybrid criminal state” that is invading the United States.
In the multiple lawsuits the ACLU has helped bring against Trump’s use of the AEA, the group has argued that the administration failed to prove that the presence of Tren de Aragua members amounts to a “predatory incursion” or a declared war as the text of the AEA outlines.
“This was solely about war and serious military conflict at a size where we would respond with our military, and no one’s suggesting that the military has or would respond here,” Gelernt argued during Monday’s hearing.
The judges, however, seemed most concerned about whether or not they had the power to rule against a president’s invocation of the act.
“Can you give me a Supreme Court case where the Supreme Court has said you can, as a federal court, countermand the president of the United States in his determination that we’re in an armed conflict?” one of the judges asked.
Salvadoran police officers process alleged members of the Venezuelan gang Tren de Aragua recently deported by the U.S. government to be imprisoned in the Terrorism Confinement Center prison, in San Luis Talpa, El Salvador, obtained Mar. 16, 2025.
Secretaria de Prensa de la Presidencia via Reuters
Gelernt replied that he could not point to a specific case, but argued that if the court were to declare that the AEA requires a military conflict, “it would have to be able to take action to say, ‘Well, does the proclamation on its face set forth a military conflict?'”
“The government itself is not claiming there’s a military conflict,” he said.
Deputy Assistant Attorney General Drew Ensign argued that the court did not have the power to second guess the president’s authority to invoke the act.
Ensign also claimed that Tren de Aragua had taken over “entire apartment buildings in which they exercise control” in areas across the country, and that the FBI had reason to believe that the gang would carry out assassinations in the United States.
“The FBI has assessed that it’s likely the TdA will try to carry out targeted assassinations of the Maduro regime in the next six to 18 months, as indeed, they have done in Chile — they kidnapped and murdered a former Venezuelan army colonel who was a critic of the Maduro regime and had asylum in Chile,” said Ensign.
“So we think all of that evidence clearly supports the president’s determination that an invasion and predatory incursion has occurred,” Ensign said.
