Fifth Circuit Ducks Trump's Alien Enemies Act Case
Fifth Circuit Ducks Trump's Alien Enemies Act Case
The News
The full Fifth Circuit Court of Appeals dismissed the biggest legal challenge to President Trump's use of the Alien Enemies Act on Thursday without ever deciding whether the deportations were legal.
The New Orleans-based court threw out W.M.M. v. Trump as moot because the administration had already removed all three named plaintiffs from the country using other legal authorities, according to NBC News and Reason.
The case concerned the attempted removal of alleged Tren de Aragua gang members under a 1798 wartime law. The core question — whether illegal immigration and drug smuggling amount to an "invasion" or "predatory incursion" that unlocks the Act — is now unresolved.
Timeline
The Supreme Court blocked the government from immediately removing the alleged Tren de Aragua members without giving them an opportunity to challenge the move, NBC News reported.
Back at the appeals court, a three-judge Fifth Circuit panel ruled against Trump, finding that illegal migration and drug smuggling do not qualify as the kind of "invasion" or "predatory incursion" the Alien Enemies Act requires.
The full 17-member Fifth Circuit — considered the most conservative appeals court in the country — agreed to rehear the case en banc at the administration's request.
The en banc court dismissed the case as moot, and refused a request from the plaintiffs' lawyers to substitute new plaintiffs for the men who had been deported.
Reactions
Chief Judge Jennifer Walker Elrod wrote that the deportations that mooted the case were "unobjectionable." She added: "The Supreme Court expressly said that the government could remove the named petitioners and putative class under other laws. And petitioners point out no infirmities in their removal."
Judge James Ho, writing in a concurring opinion, argued the court should have decided the case on the merits and should have held that the president is entitled to absolute deference when he determines that an "invasion" has occurred, according to Reason's account of the ruling.
Ilya Somin, the George Mason University law professor who co-authored an amicus brief against the administration on behalf of the Cato Institute, the Brennan Center and others, wrote that the dismissal leaves the key question unresolved and presumably wipes out the earlier panel opinion that went against Trump.
Conservative outlet RedState summed up the anticlimax in its headline: "After All That, 5th Circuit's Trump Alien Enemies Act Case Goes Poof."
The New York Times called it a messy conclusion to a long-running legal battle that had seemed destined to reach the Supreme Court.
What's Next
With the appeal dismissed, there is no live Fifth Circuit ruling on whether Trump's invocation of the Alien Enemies Act was lawful — and NBC News reported the outcome most likely delays a definitive Supreme Court ruling on the question.
Any future test would require a new case with plaintiffs still in the country. The administration retains the other deportation authorities it used to remove the three men in this case.
More
The Alien Enemies Act of 1798 allows the detention and deportation of citizens of a relevant foreign country — legal migrants included — whenever there is a declared war, or an invasion or predatory incursion perpetrated, attempted or threatened against U.S. territory by a foreign nation or government.
How far that language stretches came up at the en banc oral argument, Reason reported: Elrod asked whether the government's position meant a president could invoke the Act in response to the "British Invasion" of rock stars like the Beatles. Justice Department attorney Drew Ensign answered yes.
NBC News reported that Thursday's ruling underlines how the administration's effort to use the Alien Enemies Act has largely fizzled.
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