By Devan Cole

(CNN) — A divided federal appeals court on Tuesday said President Donald Trump’s use of the Alien Enemies Act to rapidly deport alleged Venezuelan gang members is unlawful and blocked its use in several southern states, issuing another blow to Trump’s invocation of the 18th century law.

The 5th US Circuit Court of Appeals said in a 2-1 ruling that Trump cannot move forward with using the sweeping wartime authority for deportations in Texas, Louisiana and Mississippi. The president has not leaned on the 1798 law for removals since mid-March, when his invocation of it sparked the first in a series of legal challenges.

Tuesday’s ruling is notable because it’s likely the vehicle through which the issue will reach the Supreme Court for the justices to potentially review Trump’s use of the law in full.

The opinion, penned by Judge Leslie Southwick and joined by Judge Irma Carrillo Ramirez, concluded that a “predatory incursion” or “invasion” by members of the gang, Tren de Aragua, had not occurred in the US, as Trump claimed as a reason for invoking the act.

“A country’s encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt, or to otherwise harm the United States,” Southwick wrote. “There is no finding that this mass immigration was an armed, organized force or forces. It is an action that would have been possible when the AEA was written, and the AEA would not have covered it. The AEA does not apply today either.”

“We conclude that the findings do not support that an invasion or a predatory incursion has occurred,” the judge wrote in the majority opinion.

Lee Gelernt, an attorney with the American Civil Liberties Union who represents Venezuelan detainees in north Texas who are challenging Trump’s effort to deport them under the Alien Enemies Act, said that the appeals court “correctly held that the administration’s unprecedented use of the Alien Enemies Act was unlawful because it violates Congress’ intent in passing the law.”

“This is a critical decision upholding the rule of law and reigning in the administration’s attempt to militarize immigration,” Gelernt said.

The case, arising from the Northern District of Texas, landed before the Supreme Court earlier on an emergency basis. In May, the high court paused Trump’s use of the Alien Enemies Act for deportations in that specific judicial district and sent the case back to the Fifth Circuit to consider the migrants’ claims that they weren’t receiving sufficient notice of the administration’s intent to deport them under the law.

Those claims stemmed from a separate order issued by the Supreme Court earlier this year in which the justices, without deciding whether Trump lawfully invoked the act, said he could continue to use it for now but that migrants targeted under it are entitled to notice and an opportunity to challenge their impending removal in court.

The New Orleans-based appeals court concluded on Tuesday that the government’s decision to give migrants seven days’ notice before removing them under the act “appears to comply with the Supreme Court’s directive.” But that part of the court’s ruling was joined only by Southwick, an appointee of former President George W. Bush, and Judge Andrew Oldham, a Trump appointee who otherwise dissented from the court’s ruling that Trump unlawfully invoked the Alien Enemies Act.

Ramirez, an appointee of former President Joe Biden, said in a partial dissent that “seven days’ notice is not reasonably calculated, under all the circumstances, to afford detainees, especially those who are unrepresented, due process under the AEA.”

“At least twenty-one days’ notice is required,” she wrote.

While other federal judges have ruled against Trump in his effort to use the act to speed up deportations of the alleged gang members, Tuesday’s ruling from the Fifth Circuit represents the first time an appeals court has looked this closely at the issue.

The law is designed to be invoked if the US is at war with another country, or a foreign nation has invaded the US or threatened to do so. When Trump invoked it earlier this year to target alleged members of Tren de Aragua, which he has designated a foreign terrorist organization, he claimed they “have unlawfully infiltrated the United States and are conducting irregular warfare and undertaking hostile actions against the United States.”

More than 200 alleged members of the gang were quickly loaded on to military planes and flown to El Salvador, where they were imprisoned in the country’s notorious mega-prison until July, when they were flown back to their home country in exchange for 10 US nationals.

A series of fast-moving legal challenges quickly frustrated Trump’s ability to continue using the law for deportations, and since March, no additional removals have happened pursuant to Trump’s proclamation invoking the wartime authority.

Dissent says Trump is held to a different standard

Oldham, who was put on the bench by Trump during his first term, penned a lengthy dissent in which he accused his colleagues of forcing the president to follow a different set of rules.

“Today the majority holds that President Trump is just an ordinary civil litigant. His declaration of a predatory incursion is not conclusive. Far from it. Rather, President Trump must plead sufficient facts — as if he were some run-of-the-mill plaintiff in a breach-of-contract case — to convince a federal judge that he is entitled to relief,” Oldham wrote.

He went on to say that courts should give Trump greater deference when it comes to his decisions in immigration matters, echoing an argument pushed by lawyers for the administration that courts are powerless to second-guess a president on such issues.

“As far as I know, no federal judge has received a single intelligence briefing about TdA and the AEA. So even if the Constitution gave us the power to countermand the political branches’ determinations in this area, we could not possibly do the job with anything more than judicial whim or gut-level instincts based on ill-informed, unbriefed judicial guesswork,” Oldham wrote.

This story has been updated with additional details.

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