A three-judge panel from the 5th Circuit Court of Appeals recently voted 2-1 to issue a preliminary injunction blocking the Trump administration from using the 1798 measure to deport dangerous gang members back to their homeland.
It is a wartime law, part of the broader Alien and Sedition Acts, that grants the president authority to detain and deport citizens of a "hostile nation" during a declared war or invasion, without requiring a court hearing.
It targets individuals over 14 years old from enemy countries and has been invoked historically during times of conflict, but the panel last week upheld a ruling from a lower court judge who said the statute was not intended to be used against gangs like Venezuela's Tren de Aragua, which Trump has been targeting since March.
Ira Mehlman, media director for the Federation for American Immigration Reform (FAIR), says the Trump legal team has options.
"It's clear that they're going to continue to litigate this," he notes. "Whether it goes to the full circuit or they try to go directly to the Supreme Court, this has to be resolved – the sooner the better."
He recognizes that this strategy of "litigate everything and run the clock" continues to be employed by the opponents of immigration enforcement.
"They did it effectively in the first administration; they're trying it again," Mehlman observes. "Not necessarily as successfully, but clearly, that is the strategy of the opposition here. They're going to just try to stall everything as long as they can."
From 2017 to 2021, the challenges to Trump's immigration policies reached estimates in the hundreds. The lawsuits were filed by various entities on different aspects of his policies, making them difficult to quantify exactly.
As of the end of March 2017, there were 763 civil immigration lawsuits filed in federal courts involving immigration matters, some of which were people seeking release from detention or opposing deportation.
By August 2020, the ACLU alone had filed 174 lawsuits specifically dealing with immigrant rights, including deportation, detention, and asylum.
Many of those challenges resulted in protracted legal battles that played out across the court system instead of a single verdict.
In the first 100 days of his second term, roughly 220 lawsuits were filed against the Trump administration overall, about 60 of which directly challenged his immigration policies.
The Supreme Court's decisions in April and May clarified that individuals facing detention and removal are entitled to Fifth Amendment rights, including notice and an opportunity to challenge their detention and removal, even if the process for challenging it is limited.
