MICHEL MARTIN, HOST:
And we have one more story that involves alleged gang members from Venezuela. The 5th Circuit Court of Appeals issued a late-night ruling blocking the Trump administration's use of an 18th-century wartime power to deport Venezuelans it says are gang members. The administration has been using the Alien Enemies Act to quickly remove people it suspects of being members of the Tren de Aragua gang. Now the ultimate question of whether the president's invocation of the act is legal could be headed to the Supreme Court. NPR's Ximena Bustillo has been following the case, and she's with us now. Good morning.
XIMENA BUSTILLO, BYLINE: Good morning.
MARTIN: So you've been telling us that the use of the Alien Enemies Act has attracted many lawsuits. So what is this latest decision?
BUSTILLO: An appeals panel in the 5th Circuit has issued a preliminary injunction which stops the Trump administration from using the Alien Enemies Act as the reason for deporting people. The decision comes out of what is generally considered the most conservative circuit. And in their decision, two judges, appointed by Presidents George W. Bush and Joe Biden, took issue with the use of the wartime power and lack of relief if someone is removed by mistake. One judge, a Trump appointee, issued a dissent opinion.
Lee Gelernt, who argued the case for the ACLU, told NPR that the use of the wartime power to regulate immigration was, quote, rightfully "shut down." The administration will have the option of appealing to a wider appeals court. This is expected - that this issue will then make its way all the way up to the Supreme Court.
MARTIN: And the Supreme Court has already issued a few emergency decisions related to the Alien Enemies Act. How is it different?
BUSTILLO: The court has yet to directly address the larger question of whether President Trump's invocation of the Alien Enemies Act at all was legal. So far, they've weighed in on ancillary issues, mostly to do with how much notice people are given before their removal. For example, in March, the court ruled that those being deported through the act needed reasonable time to argue against their removals. Then, in May, the Supreme Court issued an order overnight to stop the deportation out of a facility in North Texas. That's a detention facility. Lawyers on behalf of Venezuelans held at that detention facility moved to quickly stop their clients' deportations when they learned that they had only received hours' notice that they were about to be removed using the Alien Enemies Act.
Generally, challenges to the use of the Alien Enemies Act has been playing out at individual courts across the country. District judges in Texas, Colorado and New York have ruled against the administration's use of the act, questioning Tren de Aragua's alleged ties to Venezuelan government and noting that the U.S. is not at war.
MARTIN: OK. So what you're telling us is that there have been a number of setbacks to Trump's use of the law. This is just the latest. Have you observed a throughline to what judges are objecting to?
BUSTILLO: A few things stick out across the various decisions. Judges and justices have often pointed to two main issues. First, the lack of time and notice given to those removed under the act, and second, the absence of remedies in the face of mistakes. In this latest decision, for example, the panel was united in saying that the government is actually providing sufficient notice - about seven days - to those that it wants to remove with the act. There have been challenges over individuals only receiving hours' notice, leading to immigration lawyers arguing that there simply is not enough time for someone to contest their removal.
But one element that the government seems to continuously struggle to refute is the lack of remedies if there are errors. The panel in this case, like others, have raised concerns with the government's responses on how they would navigate mistakes. They also note that the government cites nothing to indicate commitment to not remove a person who is challenging their detention. It remains to be seen what the government argues in court so it can continue to use the law to deport Venezuelans from the country.
MARTIN: That's NPR's Ximena Bustillo. Ximena, thank you.
BUSTILLO: Thank you.
MARTIN: A spokesperson for the Department of Homeland Security told NPR that, quote, "this ruling will not be the final say on this matter," unquote. The statement went on to say, quote, "we are confident on our position, and we have the law, the facts and common sense on our side."
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