Trump's use of 18th-century law to remove Venezuelans set for major legal showdown

Donald Trump

US President Donald Trump's aggressive attempt to deploy an obscure 18th-century law to expel Venezuelan immigrants is to come before a federal appeals court in New Orleans, where a judge will determine if the move is constitutional and legal, the New York Times reported.

The Fifth Circuit Court of Appeals will listen to arguments on Monday in a lawsuit that questions Trump's application of the Alien Enemies Act, a little-used 1798 law. Traditionally, the law has been applied only in the event of a declared war, Trump's administration applied the law to detain and deport Venezuelan males charged with being members of the Tren de Aragua, a brutal street gang infamous for violence that Trump's administration recently added to the list of foreign terrorist organizations.

Unconventional legal jurisdiction and novel precedent

The Alien Enemies Act authorizes the president to expel nationals of an enemy belligerent nation in time of war or "invasion." Trump's administration contends the gang's presence here is such an invasion — and makes charges of association with the Venezuelan government by Tren de Aragua. Critics, including the American Civil Liberties Union (ACLU), contend these charges push the definition of "invasion" to the limits of the possible and amount to collective punishment of migrant people without a criminal history.

The measure has been invoked only three times in the history of America -- during World War I and World War II -- in a bid to legitimize actions against citizens of enemy nations. Trump's invocation, however, is the first time it has been invoked without a declared war.

Legal opposition and Supreme Court halt

Ninety-nine percent of federal courts have agreed with the ACLU thus far, ruling the administration went too far legally. However, two lower courts supported Trump's actions, citing the wide discretion accorded the executive branch when it comes to foreign policy and national security — especially when dealing with an entity that has been labelled terrorists.

The Fifth Circuit, the most conservative of the federal courts, will be less favourable to the cause of the ACLU. Either way, the case will probably reach the Supreme Court, which has already issued temporary orders to halt some of the deportations.

Earlier this month, the Supreme Court suspended deportation of Venezuelan men at an El Paso centre, declaring they were not given adequate time to contest deportation. The court did not go so far, though, as to declare the Alien Enemies Act was used lawfully.

Political and humanitarian reasons

The stakes are high. The Trump administration argues the law is vital to public safety and national sovereignty, especially as tensions with Venezuela rise and fears of organized crime intensify. The opponents argue the policy targets vulnerable people with little evidence and attacks constitutional protections.

Immigration activists say Trump's policy sets a chilling precedent. "Mass migration is not an invasion," the ACLU said in its briefs. "The use of wartime powers in times of peace, without Congressional approval, is profoundly disturbing."

To date, more than a hundred Venezuelans have been deported under the law, with others detained in facilities across the U.S. Some had previously been deported to El Salvador, with their safety in question.

A traditional test case for Trump's immigration legacy

The Fifth Circuit ruling will decide the limits of Trump's executive authority on immigration in his second term — and even redefine the way the U.S. enforces centuries-old laws in modern circumstances. The case also highlights the broader discrepancies between immigration enforcement and human rights under Trump's renewed hardline policy.

If the Supreme Court ultimately establishes Trump's interpretation of the Alien Enemies Act, it could very well establish new channels for the advance of war emergency powers against non-conventional forms of military threats — a trend with global implications.