A split three-judge panel of the 5th Circuit Court of Appeals blocked President Donald Trump from using the Alien Enemies Act (AEA) to deport illegal aliens accused of being members of the Venezuelan gang Tren de Aragua (TdA).
The Alien Enemy Act of 1798 allows the president, “during a declared war or in the event of an ‘invasion’ or ‘predatory incursion’ perpetrated or threatened by ‘any foreign nation or government,’ to issue regulations directing the conduct of or otherwise restraining citizens or nationals of the hostile nation or government.”
If Congress hasn’t declared war, the president can use the AEA “only upon his determination and proclamation that a foreign nation or government is conducting or threatening an ‘invasion or predatory incursion’ into the territory of the United States.”
When a president invokes the AEA, the government can “detain or remove all citizens and nationals of the hostile country, age 14 and above, in accordance with regulations promulgated for that purpose and, unless suspected of engaging in hostilities, after they are given adequate opportunity to depart of their own accord.”
Judge Leslie Southwick authored the opinion. Judge Irma Ramirez concurred on the AEA issue, but dissented on the notice.
Judge Andrew Oldham dissented on AEA, but concurred with the notice.
The Supreme Court sent the case back to the 5th Circuit in May, asking the court to decide two things:
The Supreme Court remanded for this court to “address (1) all the normal preliminary injunction factors, including likelihood of success on the merits, as to the named [Petitioners’] underlying habeas claims that the AEA does not authorize their removal pursuant to the President’s March 14, 2025, Proclamation, and (2) the issue of what notice is due, as to the putative class’s due process claims against summary removal.”
The two judges granted the preliminary injunction because the plaintiffs didn’t have proof of an invasion:
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. 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.
However, the judges did agree that it is possible that Venezuelan dictator President Nicolás Maduro worked with TdA members.
The judges agreed that “drug-trafficking is being used as a weapon,” but they held that “it is not within even an updated meaning of invasion or predatory incursion.”
Then Southwick dives into the notice issue, which she and Oldham agreed is good enough. The government initially gave the illegal aliens a 24-hour notice.
The Trump administration has updated the notice to seven days, written in a language the person understands.
The plaintiffs are seeking a 30-day notice, similar to the one used by the government in the 1940s.
Southwick wrote, “What was reasonable in the 1940s is not automatically what is reasonable today, considering the different conditions of communication, availability of counsel, number of aliens subject to the AEA, and other circumstances.”
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