Full Federal Appeals Court to Hear Alien Enemies Act Case

A federal appeals court in New Orleans agreed on Tuesday to reconsider a ruling by one of its three-judge panels earlier this month that rejected President Trump’s use of an 18th-century wartime law to deport immigrants he has accused of belonging to a violent Venezuelan street gang.

The decision by the full court vacated the panel’s ruling barring Mr. Trump from using the law, the Alien Enemies Act, as a tool in his aggressive deportation agenda. But it did not mean that the Trump administration could resume expelling people from the country under the act’s extraordinary powers.

The full court’s move kept in place for now a hold issued by the Supreme Court that has effectively served as a nationwide ban on using the Alien Enemies Act to remove immigrants Mr. Trump has accused of belonging to the gang, known as Tren de Aragua.

Unless the Justice Department successfully requests to get rid of the pause as the full appeals court deliberates, it should remain in place until the Supreme Court takes up the case again to weigh whether the White House has properly used the law.

Mr. Trump made the Alien Enemies Act, which was passed in 1798, the centerpiece of his earliest efforts to summarily deport immigrants, issuing a proclamation in March that drew on the law’s sweeping powers to round up and expel members of a hostile nation in times of war, or during an invasion or predatory incursion.

But in early September, after legal fights in multiple courts across the country, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit rejected Mr. Trump’s assertions that the United States was under invasion by Tren de Aragua. In doing so, the panel rebuffed the idea that immigration, even at a large scale, was synonymous with a military breach of U.S. borders.

The ruling by the panel also preserved a provision requiring administration officials to provide immigrants who might be expelled under the Alien Enemies Act with a week’s warning before their removal.

The Fifth Circuit is one of the country’s most conservative courts, and the panel’s 2-to-1 ruling against Mr. Trump was something of a surprise. When the full court rules, it is more likely to find in favor of the president. But no matter which way the appellate judges come down, the case will probably end up back at the Supreme Court.

For that reason, Judge Leslie H. Southwick, who was part of the panel’s two-judge majority against Mr. Trump, wrote in a dissenting opinion on Tuesday that it was essentially a waste of time for the full court to reconsider the case in what is known as “en banc” rehearing.

“I see no purpose to be served by requiring this case to linger here for the many months that en banc rehearing would entail,” Judge Southwick wrote. “The parties deserve conclusive answers that only the Supreme Court can give.”

Judge Southwick added that while the full court may eventually reverse the panel he had served on, “there is considerable cost in time and no benefit in the thoroughness of our response to the Supreme Court in discovering if that is so.”