Podcast Summary: Lawfare Daily – The Litigation Challenging Pres. Trump’s Alien Enemies Act, with Lee Gelernt

Podcast: The Lawfare Podcast
Host: Roger Parloff (Senior Editor)
Guest: Lee Gelernt (Deputy Director, ACLU Immigrants’ Rights Project)
Date: September 16, 2025

Overview

This episode delves into the national, legal, and constitutional issues raised by the Trump Administration’s invocation of the Alien Enemies Act to facilitate the removal of particular groups of migrants, notably Venezuelan men allegedly affiliated with the Trende Aragua (TDA) gang. Lee Gelernt, lead attorney in several key challenges to the policy, discusses the Fifth Circuit’s recent landmark ruling in favor of his clients, the statutory and due process questions at stake, and the broader implications for executive power as well as other ongoing litigation.

Key Discussion Points & Insights

1. Background of the Alien Enemies Act Proclamation

• The Fifth Circuit Ruling (03:40–06:20):

  • The Trump administration attempted to invoke the Alien Enemies Act, a rarely used 1798 law, alleging a national security threat linked to Venezuelan criminal gangs.
  • The statute’s authority is restricted to contexts of declared war, invasion, or predatory incursion by a foreign nation.
  • The Fifth Circuit found that the government had not met these criteria, particularly that the events in question did not constitute invasion or predatory incursion:

    “The Fifth Circuit properly understood [‘predatory incursion’] to be an organized, cohesive military attack. What the proclamation had asserted was that Maduro was pushing migration and drugs and that there were random crimes by what’s essentially a criminal organization…that wasn’t sufficient.”
    —Lee Gelernt [05:22]

  • This is only the fourth use of the Act in U.S. history, all prior times tied to major wars.

• Judicial Oversight & Separation of Powers (06:20–11:57):

  • The court’s willingness to scrutinize the executive’s invocation of sweeping authority is seen as an important signal for judicial independence and the limits of presidential power.
  • Concerns about using ‘wartime’ authorities for criminal or immigration issues rather than clear military threats.

2. Legal Arguments & Historical Context

• Alien Friends Act vs. Alien Enemies Act (12:45–14:31):
  • The Alien Friends Act, passed alongside the Enemies Act, allowed the President broad powers outside wartime but was heavily criticized and allowed to lapse.
  • The existence and lapse of the Friends Act underline that Congress intended the Enemies Act as a wartime measure only.

    “This is a wartime measure. Let’s not use it outside war. That’s a very dangerous thing to do.”
    —Lee Gelernt [14:08]

3. Due Process for Targeted Individuals

• Insufficient Opportunity for Review (16:13–21:06):

  • The original government position offered no time for targets to challenge their designation as TDA members before removal.
  • Through litigation, relief was gradually expanded: Supreme Court rebuffed the government’s offer of 12 hours, calling even 24 hours “patently insufficient,” leading the government to allow seven days for habeas petitions—with ongoing litigation over its sufficiency.

    “People need to find lawyers. Not every lawyer knows how to file a habeas petition. It is very hard to make calls out of a detention center.”
    —Lee Gelernt [18:20]

• On the Practical Barriers:

  “…It’s going to be hard to find lawyers for people and it’s going to require sophisticated lawyers and it’s [sic] required get to rural areas, which, you know, is resource intensive.” —Lee Gelernt [49:11]

4. Pending and Related Litigation

• Test Case Strategy and Parallel Appeals (22:23–23:15):

  • The Fifth Circuit case was treated as the central test case, with others in the Second and Tenth Circuits held in abeyance.

• Aftermath for Deported Individuals (24:13–24:54):

  • Gelernt is seeking to facilitate the return of deported individuals who received zero process and now wish to challenge their expulsion.

    “There are individuals who do want to return. So we intend relatively soon to file another injunction saying…we believe they should have the ability to challenge their removal.”
    —Lee Gelernt [26:35]

5. The Criminal Contempt Dispute

• Government Noncompliance with Court Order (33:11–38:29):
  • A night of rushed deportations led to potential violations of Judge Boasberg’s order to halt removals.
  • The ACLU pursued possible criminal contempt to safeguard judicial authority:

    “This question of whether a federal court’s order can be blatantly violated without any sanction could end up transcending all these cases.”
    —Lee Gelernt [34:48]

  • Ongoing D.C. Circuit review of whether contempt proceedings can be referred to an independent prosecutor if DOJ refuses to act.

6. Broader Executive Actions: The “Invasion” Proclamation

• Closure of Asylum (50:14–52:57):
  • The Trump administration also invoked a separate measure (the “212(f) invasion proclamation”), closing all asylum pathways at the border regardless of the circumstances.

    “We made a solemn promise after World War II we would never send people back again to danger without at least screening them.”
    —Lee Gelernt [51:03]

  • Draws a parallel to the Alien Enemies Act—a pattern of executive claims of “invasion” yielding sweeping power, with courts’ willingness to intervene as a critical check.

Notable Quotes & Memorable Moments

• On the Fifth Circuit’s Decision:
  “The President doesn’t have the unilateral authority simply to declare that we are being invaded and therefore unlock any powers he wants.”
  —Lee Gelernt [05:55]

• On Separation of Powers:
  “Congress decided that it should be a cabined authority because it’s such an extraordinary power…Are the courts going to enforce another political branch’s decision, Congress’s decision to cabin this authority to only wartime?”
  —Lee Gelernt [11:27]

• On Historical Statutes:
  “I think the fact that Congress passed them at the same time revealed that the Alien Enemies Act was supposed to be used during wartime, and that if you wanted to go after noncitizens without us being at war, then you would use the Alien Friends Act.”
  —Lee Gelernt [13:47]

• On Due Process:
  “We’ve come a long way from no review to 12 hours to seven days. We’ll see if ultimately the proclamation is upheld as consistent with the act, which we hope is not.”
  —Lee Gelernt [20:14]

• On Broader Consequences:
  “If the federal courts can’t enforce their orders against any litigant, especially against the executive branch, that’s a dangerous place that we’ll be in.”
  —Lee Gelernt [38:14]

Important Timestamps

| Timestamp | Segment / Topic | |---------------|-------------------------------------------------------------------| | 03:40–06:20 | Fifth Circuit’s historic ruling and statutory arguments | | 06:20–11:57 | Separation of powers; judicial review vs. executive authority | | 12:45–14:31 | Historical context: Alien Friends Act vs. Alien Enemies Act | | 16:13–21:06 | Due process: timing challenges and practical barriers | | 24:13–28:37 | Status and plans for individuals already deported | | 33:11–39:05 | The criminal contempt litigation and structural concerns | | 40:20–45:45 | How the ACLU challenge began: inside-story & legal scramble | | 50:14–52:57 | The “212(f) invasion proclamation” and elimination of asylum |

Additional Insights

• Litigation Logistics:
  The ACLU tracked individuals being transferred to various states and detention centers, necessitating rapid and multi-jurisdictional habeas filings.
• Resource Challenges:
  The retreat of large law firms from pro bono representation under political pressure has made it harder for organizations to serve detained populations—especially in rural locations, as discussed near [48:29–49:48].
• Open Questions:
  Aspects such as what actually occurred with certain March 15 deportation flights remain to be clarified (see [45:45–47:38]).

Conclusion

This episode provides a comprehensive overview of the legal, historical, and practical complexities surrounding the Trump administration’s use of the Alien Enemies Act. Through the lens of ongoing litigation, it examines judicial resistance to executive overreach, the importance of due process, and the stakes for immigration and separation of powers doctrine in the U.S.

For further reference and ongoing updates, see: https://www.lawfareblog.com