WASHINGTON – A federal appeals court in D.C. appears to be divided on President Donald Trump’s use of a 200-year-old wartime law to deport people allegedly tied to the Venezuelan gang Tren de Aragua. 

A D.C. judge has blocked him from using the law for now. A decision is expected soon as time is of the essence for both sides. 

Monday’s argument was about a procedural question, but the court’s decision will determine whether the Trump administration can immediately resume deporting people under a law from 1798 called the Alien Enemies Act. The law gives the president wartime power to detain and deport people in the country who are from an enemy nation. 

Judge Challenges Trump:

Judge Patty Millett, an Obama appointee, pressed the DOJ’s lawyer about using the law now when it was intended for wartime. She said it’s only been used three times in history — the War of 1812, World War I and World War II. 

Millett forcefully questioned whether people who have already been removed — or will be — under this law were given notice and a chance to challenge their association with Tren de Aragua. 

“Nazis got better treatment under the Alien Enemies Act than has happened here, when the proclamation required the promulgation of regulations and they had hearing boards before people were removed.” D.C. Circuit Judge Millett said. “I mean, y’all could have picked me up on Saturday and thrown me on a plane thinking I’m a member of Tren de Aragua and say somehow it’s a violation of presidential war powers for me to say, ‘excuse me, no I’m not. I’d like a hearing.’”

The other side:

DOJ lawyers argued that the judge’s order blocking deportations, including ordering planes on their way to El Salvador to turn around, represents an extraordinary intrusion on the president’s powers when it comes to foreign affairs and national security. Typically, the president is at the apex of his constitutional powers when dealing with foreign nations and matters of national security. 

The DOJ’s lawyer seemed to find an empathetic ear from Trump-appointed Judge Justin Walker.

“I’m wondering if you can point me to a district court TRO or injunction that survived an appeal and stopped an ongoing, partially overseas, national security operation in the way that this — at the time at least — did order planes to take foreigners from international waters to the United States,” Walker said.

What’s next:

Monday’s arguments were delivered in front of a three-judge panel made up of Millett, Walker and Judge Karen Lecraft Henderson, appointed by George H.W. Bush, who remained silent. 

Henderson was on the panel that unanimously held that Trump did not have broad presidential immunity before getting overturned by the Supreme Court. She will likely be the deciding vote.