A federal appeals court in New Orleans heard arguments on whether President Trump can use the Alien Enemies Act of 1798 to deport Venezuelan gang members under wartime powers, with a judge joking about applying the law to a hypothetical British invasion.

A three-judge panel had earlier ruled the act cannot be used against a criminal gang as a belligerent foreign power, prompting the administration to appeal to the full 5th Circuit.

Historically, the Alien Enemies Act has been invoked only three times, during War of 1812 and both World Wars, and the Supreme Court has required a reasonable opportunity to challenge gang-member designations when used against individuals.

The session underscored tensions between executive foreign affairs prerogatives and judicial review, with some judges deferring to presidential determinations of national threat and others insisting on legal boundaries and due process.

The Department of Justice urged highly deferential review, asking courts to take the president’s statements at face value and avoid extensive fact-finding into the AEA invocation.

A contextual timeline notes the Supreme Court has halted some actions and required due process in related cases, but did not rule on the act’s constitutionality in this matter.

The dispute ties into broader challenges to Trump’s immigration agenda, including related actions in other federal courts such as a DC Circuit proceeding and a contempt inquiry over deportation flights.

Courts have split on the AEA’s use in this matter, with some Trump-appointed judges ruling against and others in favor, reflecting ongoing security and constitutional concerns.

Judge James Ho signaled possible judicial restraint by suggesting the judiciary might defer to the executive on factual questions surrounding the wartime invocation.

Judge Cory Wilson raised questions about the circuit’s role in evaluating the law if the court does not review the underlying facts of the declaration, hinting at limits on judicial review.

Judges expressed concern about second-guessing national security determinations, emphasizing the act’s invocation in cases of invasion or predatory incursion and framing such decisions as presidential prerogatives.

The DOJ cited the arrest of Venezuelan President Nicolás Maduro to support that his government is connected to Tren de Aragua, arguing the AEA serves a national security mission beyond judicial interference.