The Lawfare Podcast Lawfare Daily: The Litigation Challenging Pres. Trump's Alien Enemies Act, with Lee Gelernt
Sep 16, 2025
Lee Gelernt, Deputy Director of the ACLU's Immigrants' Rights Project, dives into the legal battles against President Trump's Alien Enemies Act. He discusses a significant victory in the Fifth Circuit and ongoing litigation in D.C. The conversation touches on the importance of due process and judicial oversight in executive power. Gelernt also highlights the urgency of providing legal representation to detainees amid the complex intersection of national security and personal rights.
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Court Limits Alien Enemies Act To Wartime
- The Fifth Circuit found the Alien Enemies Act inapplicable because no declared war or organized military incursion existed.
- Courts treated Tren de Aragua's criminal activity as insufficient to qualify as a wartime 'predatory incursion.'
Using Wartime Statutes Expands Executive Power
- Using wartime statutes against criminal organizations would vastly expand executive power.
- Courts resisted that expansion, noting historical use only in major declared wars.
Press Courts To Enforce Statutory Limits
- Challenge expansive statutory interpretations that let the executive claim any harm 'contrary to the interests' as a predatory incursion.
- Emphasize statutory text and congressional limits to prevent unchecked executive authority.