The 5th Circuit Rejects Trump's Invocation of the Alien Enemies Act

The appeals court blocked the removal of alleged Venezuelan gang members under that law "because we find no invasion or predatory incursion."

Several federal judges have rejected President Donald Trump's attempt to summarily deport alleged Venezuelan gang members as "alien enemies." On Tuesday night, the U.S. Court of Appeals for the 5th Circuit joined them in concluding that Trump's invocation of the Alien Enemies Act (AEA) is not supported by that 1798 law's text or history.

In a March 15 proclamation, Trump averred that the Venezuelan gang Tren de Aragua "is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States" by engaging in "mass illegal migration" and committing "brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking." He said alleged members of that gang therefore are subject to peremptory removal under the AEA as "natives, citizens, denizens, or subjects" of a "hostile nation."

The AEA applies when there is a "declared war" with "any foreign nation or government" or when "any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Prior to Trump's proclamation, the law had been invoked just three times, always in the context of declared wars—a condition that the government concedes does not exist in this case. The proclamation's validity therefore hinges on the question of whether Trump's understanding of "invasion of predatory incursion" is consistent with the terms of the statute as they were understood when it was enacted.

The 5th Circuit case, W.M.M. v. Trump, involves three AEA detainees in Texas whom the government has identified as Tren de Aragua members—mistakenly, according to the petitioners. Two of them unsuccessfully sought a temporary restraining order from a federal judge and then appealed that denial to the 5th Circuit, which concluded that the appeal was premature in light of the government's assurance that it "will not remove the petitioners during this litigation." After evidence cast doubt on the reliability of that assurance, the Supreme Court intervened, vacating the 5th Circuit's ruling and instructing the appeals court to address two issues: Does the AEA authorize the detainees' removal, and what sort of notice does due process require for people threatened with deportation under that law?

This time around, a divided 5th Circuit panel issued a preliminary injunction against the plaintiffs' removal "because we find no invasion or predatory incursion." To interpret those terms, Judge Leslie H. Southwick, a George W. Bush appointee, considers the historical context of the AEA, which Congress enacted amid concerns that war with France was imminent.

"Our focus is on a statute passed by the United States Congress in anticipation of an armed conflict with another country," Southwick writes in an opinion joined by Judge Irma Carrillo Ramirez, a Joe Biden appointee. "The formality of the occasion requires
rejecting interpretations that wander far from that common understanding of an 'invasion.'"

Southwick notes the Constitution's references to invasion and James Madison's understanding of that term as used in the AEA. "Invasion is an operation of war," Madison said. "To protect against invasion is an exercise of the power of war. A power therefore not incident to war, cannot be incident to a particular modification of war."

The evidence indicates that the AEA's definition of invasion is "consistent with the use in the Constitution," meaning it is "a term about war in the traditional sense and requires military action by a foreign nation," Southwick writes. "We define an invasion for purposes of the AEA as an act of war involving the entry into this country by a military force of or at least directed by another country or nation, with a hostile intent." He says the petitioners therefore "are likely to succeed in demonstrating that the Proclamation cannot be supported" by "the existence of a declared war or an invasion."

What about a "predatory incursion"? "Based on the dictionary definitions and neighboring statutory text," Southwick says, "a 'predatory incursion,' as used in the AEA, definitely applies to an unauthorized entrance by units of another nation's military to commit acts that are destructive to the interests of the United States, such as victimizing its people or property, for the benefit of a foreign power or its agents without the necessary objective of a long-term occupation or control of American territory."

Could something less than that qualify as a "predatory incursion"? Southwick considers various examples of contemporaneous usage and concludes that references to that phrase "all involved a military force of some meaningful size, organized in a manner related to the kind of enemy involved, whether an Indian tribe, a distant foreign government [that] used its own forces or privateers, or an adjacent country using its own troops."

Southwick also notes that the now-defunct Alien Friends Act, which Congress approved along with the AEA, had a broader scope, authorizing "forced removal from the United States based solely on the perceived danger to this country by a specific alien." That law did not hinge on "the actions of the alien's home nation or government, though the existence of hostile acts would not block use of the Alien Friends Act against a specific, dangerous alien." The AEA, by contrast, "demands specific categories of hostility by another nation or government before acting against an individual alien, but the individual need not exhibit personal hostility to this country." It therefore applies only when the president "identifies a predatory incursion by forces of a foreign nation or government."

Trump's proclamation alleged that Tren de Aragua "has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime's goal of destabilizing democratic nations in the Americas, including the United States." But "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 says. "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."

Although "we accept each of the factual findings in the Proclamation," Southwick writes, that does not mean the appeals court is bound to accept "the labels applied to those findings." Recognizing "our obligation to interpret the AEA," he says, "we conclude that the findings do not support that an invasion or a predatory incursion has occurred. We therefore conclude that petitioners are likely to prove that the AEA was improperly invoked."

Southwick also addresses the question of whether Trump identified a "foreign nation or government" whose "natives, citizens, denizens, or subjects" are covered by the AEA. "It does appear that the AEA contemplates that a foreign country will be designated in a proclamation," he says. But he adds that "the different wording of the Proclamation to designate [Tren de Aragua] does not by itself invalidate use of the AEA," given Trump's claim that the Venezuelan government is "directing" the gang's actions.

"Had we determined [that Tren de Aragua] was engaged in either an invasion or a predatory incursion, the findings in the Proclamation that such actions were being directed at least in part by the foreign Maduro regime would satisfy the requirement that those actions be by a government or nation," Southwick writes. "We held instead that [Tren de Aragua] was not the kind of organized force or engaged in the kind of actions necessary to constitute an invasion or predatory incursion. Because of our conclusion that the Proclamation does not identify actions by the Maduro regime in control of Venezuela that constitute one of the predicate acts for invoking the AEA, Petitioners are likely to succeed on the merits of their claims."

Dissenting Judge Andrew Oldham, a Trump appointee, argues that the courts have no business reviewing the president's determination that an "invasion or predatory incursion" is occurring. "From the dawn of our Nation until President Trump took office a second time," Oldham says, "courts have never second-guessed the President's invocation of that Act. Not once. The reason is simple: Determining whether the AEA's preconditions are satisfied—whether there is a declared war, or 'any invasion or predatory incursion' being 'perpetrated, attempted, or threatened,' depends upon 'matters of political judgment for which judges have neither technical competence nor official responsibility.'"

Oldham, in other words, accepts Trump's position that such judgments are not subject to judicial review. But in the 1948 case Ludecke v. Watkins, the Supreme Court acknowledged that the courts, in assessing challenges by AEA detainees, do have a role in addressing "questions of interpretation and constitutionality."

The Court reiterated that point last April in Trump v. J.G.G., which held that AEA detainees have a due process right to contest their designation as "alien enemies." Although the justices did not address the legality of Trump's proclamation, they noted that "an individual subject to detention and removal under that statute is entitled to 'judicial review' as to 'questions of interpretation and constitutionality' of the Act.'" In Ludecke, Southwick notes, "there was no suggestion that 'interpretation' was a pointless endeavor, that a court could make its interpretation for the interest of legal scholars but was prohibited from applying that interpretation to the facts before it."

Furthermore, the Court in Ludecke said "the additional question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may also be reviewed by the courts." On its face, that suggests a role in verifying not only the detainee's age but also his status as an "alien enemy."

The 5th Circuit is one of the country's most conservative appeals courts, Southwick was nominated by a Republican president, and his reasoning, which aims to understand the words used in the AEA "consistent with their 'ordinary meaning…at the time Congress enacted the statute,'" jibes with the approach embraced by the Supreme Court's conservative majority. His analysis echoes the assessment of U.S. District Judge Fernando Rodriguez Jr., a Trump appointee who likewise rejected the president's novel definition of "alien enemies."

None of this necessarily means the Supreme Court will agree with Southwick's interpretation of the AEA. But it does discredit any attempt to dismiss the decision as a product of partisan bias or "Radical Left" thinking, as Trump reflexively does when courts rule against him.