Takeaways from federal appeals court hearing on Trump’s use of the Alien Enemies Act

Originally Published: 24 MAR 25 17:34 ET

Updated: 24 MAR 25 17:36 ET

By Devan Cole, CNN

(CNN) — The Justice Department pressed a federal appeals court on Monday to lift a judge’s temporary block against President Donald Trump’s use of a sweeping wartime authority to quickly deport alleged members of a Venezuelan gang.

The nearly hour-long hearing before the US DC Circuit Court of Appeals was the latest front in what has become a bitter fight between the administration and the targets of a proclamation Trump signed earlier this month invoking the Alien Enemies Act to summarily remove them from the US.

It’s unclear how the three-judge panel considering the Trump administration’s request to put on hold a pair of lower-court orders will rule, or how quickly that ruling will come.

Two members of the panel – one liberal, one conservative – peppered attorneys for both sides with a series of questions on various issues central to the case, including whether the individuals subject to Trump’s proclamation lacked any due process rights that would give them a chance to defend against claims that they are members of the Venezuelan gang Tren de Aragua – and what the appropriate place for such complaints to be raised is.

But one member of the panel – Judge Karen Henderson, an appointee of former President George H.W. Bush – did not ask any questions during the proceedings.

Here are the key takeaways from the appeals court hearing:

Judge: ‘Nazis got better treatment under the Alien Enemies Act’

Judge Patricia Millett, an appointee of former President Barack Obama, was the most active member of the panel on Monday, starting her line of questioning before Justice Department attorney Drew Ensign could even finish his opening arguments. Throughout the hearing, Millett voiced her concern with how Trump’s use of the Alien Enemies Act deprived those targeted by the president with any due process rights to challenge the government’s allegation that they’re members of the gang.

At one point, Millett went so far as to say that Nazis removed from the US decades ago under the wartime authority were afforded more rights than the foreign nationals challenging Trump’s novel use of the law.

“There were planeloads of people – there were no procedures in place to notify people,” Millett said, referring to two deportation flights the administration allowed to continue earlier this month after Trump invoked the law.

“Nazis got better treatment under the Alien Enemies Act than has happened here,” she said. “And they had hearing boards, before people were removed. And yet here, there’s nothing in there about hearing boards. There are no regulations, and nothing was adopted by the agency officials that were administering this. People weren’t given notice – they weren’t told where they were going.”

Later, when pressed by Millett about whether the DOJ agrees that the accused gang members are “entitled to notice that they are being removed based” on their classification as alleged gang members, Ensign said he didn’t think that was necessary.

“Your honor, we don’t agree to the notice point,” he told Millett. “We agree that if you bring habeas (complaints) you can raise such challenges.”

Trump appointee seizes on DOJ argument

Judge Justin Walker, who was put on the bench by Trump during his first term, appeared to agree that the individuals challenging the president’s use of the Alien Enemies Act deserved a chance to challenge their removal under the act, but seemed less persuaded that the wholesale challenge to Trump’s proclamation could be brought and reviewed by the federal court in Washington under the Administrative Procedure Act.

Instead, Walker repeatedly indicated that he believed the individuals singled out for deportation under the AEA should be able to funnel their removal challenges through habeas complaints brought in the district courts where they’re being detained.

The argument is one also being pushed the Trump administration.

At one point the judge said that the claims being raised by some migrants that they’re not members of Tren de Aragua can be made – just in the “right” court and “the right court is in Texas, not here.”

But Lee Gelernt, an American Civil Liberties Union attorney representing the challengers, said that wouldn’t be a workable solution since if the orders from US District Judge James Boasberg are lifted, his clients would be loaded on to planes and removed from the US with no time for them to raise such claims.

It’s also unclear, Gelernt said, where everyone is who would be subject to such orders.

Challengers want a more orderly process

In trying to persuade the appeals court to keep the block in place, Gelernt also argued that doing so would let the litigation continue to unfold before the district court, allowing the factual record to be more fully developed for when the case lands back before the intermediate court.

“This is an unprecedented move to use the Alien Enemies Act for only the fourth time in our country’s history without a declared war,” Gelernt said at one point, adding that Boasberg is saying to “preserve the status quo until we can find all the facts.”

“And I think what we’re going to show in the district court is that many – if not most – of the people removed had no connection to the gang,” Gelernt said.

Gelernt went on to say that the case was still in an early phase and that more facts were likely to emerge in coming days that, he argued, would ultimately buttress their case. If the appeals court allowed the administration to proceed with the deportations, all that work could be erased.

He also argued, more broadly, that the orders at issue on Monday were not appealable in the first place. Temporary restraining orders are generally unappealable, as opposed to preliminary injunctions, which are regularly appealed to federal circuit courts.

Earlier Monday, Boasberg told Gelernt and his colleagues that if they wanted to convert his orders to preliminary injunctions, they must inform him of their decision by Wednesday.

“I think we’re going to move on a preliminary injunction very quickly,” he told the appeals court. “We’ll be back here – no doubt.”

What comes next

Regardless of how the appeals court rules, it’s likely the decision will be appealed to the Supreme Court by the losing side.

Walker at one point asked Gelernt whether they should put their eventual decision on hold to give the losing side a chance to seek the high court’s intervention before it goes into effect: In other words, should the appeals court be mindful of the Supreme Court’s role in all of this?

“If that were going to happen and you were going to rule for the government on this then I would hope that your honors would give us time to seek a stay at the Supreme Court without allowing everyone to be put on a plane to El Salvador in the interim,” Gelernt replied.

Boasberg’s orders are set to expire on Saturday.

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