Fifth Circuit Tosses the Alien Enemies Act Challenge as Moot After the Government Deported All Three Plaintiffs

The en banc U.S. Court of Appeals for the Fifth Circuit on Aug. 13 dismissed the challenge to Trump's use of the 1798 Alien Enemies Act to remove Venezuelans the administration accused of belonging to the Tren de Aragua gang. The court did not reach the merits. It held the case moot because the government had already removed all three named petitioners under other immigration authorities. "This development is unobjectionable," Judge Jennifer Walker Elrod wrote, noting the Supreme Court had said the government could remove the petitioners under other laws and that they identified no defects in those removals. The court refused a request to substitute new plaintiffs.

The dismissal leaves unresolved in the federal appellate courts whether a president may invoke a wartime statute for peacetime removals. A three-judge panel of the same circuit had ruled against the administration in September before the full 17-member court agreed to rehear the case in January.

The practical effect is to delay a definitive Supreme Court ruling on the question. Coverage noted that the administration's reliance on the Act has largely receded as it has turned to ordinary removal authorities.