WASHINGTON, DC – Following oral argument at the U.S. Court of Appeals for the Fifth Circuit this afternoon in W.M.M. v. Trump, in which the Court is considering whether President Trump’s invocation of the Alien Enemies Act was unlawful, Constitutional Accountability Center Senior Appellate Counsel Smita Ghosh issued the following reaction:

The Alien Enemies Act (AEA) provides that during a state of “declared war,” or when “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government,” the President can restrain and remove citizens or subjects of that foreign nation or government as “alien enemies.” When Congress gave the President this authority in 1798, those words had a clear meaning. But the government today peddled a vision of this law that would permit it to use the law whenever it says so—a far cry from the carefully cabined power that the Fifth Congress envisioned. According to the Trump administration, courts are required to completely defer to the President’s determination of what constitutes an ”invasion,” “predatory incursion,” or “foreign nation or government.” At least some of the judges seemed troubled by this prospect. “What can we interpret?” one judge asked, illustrating the breadth of the government’s request for judicial deference.

CAC Appellate Counsel Ana Builes added this reaction:

President Trump invoked the AEA against Tren de Aragua. As CAC explained in the amicus brief we filed in this case, Tren de Aragua is not a “foreign nation or government” within the meaning of the Alien Enemies Act. As our brief explains, at the time of the AEA’s passage, only an entity that held itself out to be a sovereign entity with the ability to act on behalf of its people in international affairs would have been understood as a “nation” or “government.”

Perhaps realizing this fundamental problem, the government recently shifted gears, arguing that Trump’s invocation of the AEA was lawful because Tren de Aragua is supposedly attacking the United States on behalf of Venezuela, indisputably a foreign nation or government. But, as the counsel for the ACLU, which represented the Venezuelan detainees, put it today, “the beginning and end of that is that the government hasn’t named Venezuela.” It chose to name Tren de Aragua. The government cannot have it both ways. It cannot choose to invoke the AEA against Tren de Aragua, rather than Venezuela, because it is politically expedient and then switch its position halfway through the litigation when it becomes legally problematic.