A US judge has raised a provocative hypothetical during legal arguments over President Donald Trump’s use of an 18th-century wartime statute to deport Venezuelan gang members: could a president deport The Beatles?
Jennifer Walker Elrod, chief judge of the 5th US Circuit Court of Appeals in New Orleans, asked whether the same law could be deployed against a “British invasion” deemed to be corrupting young minds. She described her reference to the 1960s moral panic surrounding The Beatles as “fanciful”. However, a government attorney responded unequivocally that the president possessed such power, and the courts would be unable to prevent its exercise.
“These sort of questions of foreign affairs and the security of the nation are specifically political issues,” said Drew Ensign, an assistant attorney general arguing the administration’s case before the full 5th Circuit. Ensign said it would be up to Congress to check the president in that scenario.
The exchange came in the administration’s appeal of a ruling that found Trump inappropriately used the Alien Enemies Act of 1798 when he targeted the Venezuelan gang Tren de Aragua. The act has only been invoked three times in US history, during the War of 1812 and both world wars. A majority of a three-judge panel agreed last year that it cannot be deployed against a gang rather than a belligerent foreign power.
All 17 judges on the 5th Circuit were present for arguments in New Orleans on Thursday. Lee Gelernt, an attorney for the ACLU, told the judges: “Tren de Aragua is committing ordinary crimes that are being dealt with by law enforcement. The Alien Enemies Act is about wartime and it's about the military.”
It is unclear when the circuit will issue its ruling, and the final decision on the constitutionality of Trump’s action will likely be made by the US Supreme Court. The high court has already intervened twice before in the legal saga, ruling that anyone removed under the act must have a “reasonable” opportunity to challenge their designation as a gang member.
