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A U.S. judge has posed a provocative hypothesis amid the legal dispute surrounding President Donald Trump’s use of an 18th-century wartime statute to deport Venezuelan gang members: “Could the president deport the Beatles?”
Chief Judge Jennifer Walker Elrod of the 5th U.S. Circuit Court of Appeals in New Orleans asked whether the same law could be applied against the “British Invasion” that was seen as corrupting young minds.
She described her references to the moral panic surrounding the Beatles and other British bands in the 1960s as “fanciful”. However, a government lawyer responded clearly that the president has such power and the courts cannot prevent its exercise.
“These types of foreign affairs and national security issues are specific political issues,” said Assistant Attorney General Drew Ensign, who is prosecuting the government’s case for the 5th Circuit Court of Appeals.
Ensign said it would be up to Congress to stop the president in this case.
The unexpected exchange came as the administration appealed a ruling by a three-judge panel of the Fifth Circuit, one of the nation’s most conservative courts, that found Trump improperly used the Enemy Alien Act of 1798 when targeting U.S. citizens. Venezuelan Last year the Aragua train gang.
The act has been invoked only three times in U.S. history, during the War of 1812 and two world wars. In its ruling last year, the majority of the three-judge panel agreed with multiple lower court judges and immigration lawyers who argued that the case could not be brought against a gang rather than a militant foreign power.
The government appealed to the en banc 5th Circuit, with all 17 justices present in the New Orleans courtroom Thursday for arguments.
“Tron de Aragua is committing ordinary crimes and law enforcement is dealing with them,” ACLU attorney Lee Gelernt told the judge. “The Alien Enemy Act is about wartime and the military.”
Several justices worried about second-guessing the president’s decisions about national threats. The Ensign noted that the law allows it to be invoked when an attempted “intrusion” or “predatory incursion” occurs, and argued that courts should accept the president’s statement that this is happening.
“Predatory intrusions are smaller than invasions,” Ensign said, arguing that cases involving other laws have established that this is what happens when foreign fishing vessels enter U.S. waters. He also pointed to Trump’s claim that the gang was acting at the behest of the recently ousted Venezuelan president Nicolás MaduroThe government’s claims have been questioned by some law enforcement analysts.
It’s unclear when the circuit court will issue its ruling, and the final ruling on whether Trump’s actions are constitutional is likely to be made by the U.S. Supreme Court.
The U.S. Supreme Court has twice previously intervened in complex legal incidents in which Trump invoked the act. His administration used the bill to fly 252 Venezuelans from the United States to the notorious prison El Salvadorwhich claims that American judges have no authority. The Supreme Court ruled that anyone else the government seeks to deport under the act needs a “reasonable” opportunity to challenge their designation as gang members in court.
The following month, as the government scrambled to prepare for another flight from Texas, the high court issued an unusual midnight ruling halting the flights. It also bans evictions under the act until the 5th Circuit can figure out proper procedures. The high court never weighed in on the constitutionality of Trump’s use of the act, leaving it to the 5th Circuit to address the issue first.