The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Federal District Court Rules Against Trump in Alien Enemies Act Case
The court ruled that Trump invoked the AEA illegally, blocks deportation of Venezuelan migrants who filed the case, and sets out standards for notifying them of their rights to challenge their deportation.
Yesterday, Judge Charlotte Sweeney of the federal District Court for the District of Colorado issued an important ruling against the Trump Administration, involving attempted deportations under the Alien Enemies Act of 1798. The Act can only be used to detain and deport immigrants in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." Judge Sweeney ruled (correctly) that none of these preconditions have been met. She also blocked deportation and transfer of the Venezuelan migrant plaintiffs detained in her district, and applied the Supreme Court's earlier ruling requiring that "AEA detainees must receive notice… they are subject to removal under the Act" and that "[t]he notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."
Here is an excerpt from her discussion of the requirements of the AEA:
Petitioners' first argument…., proceeds from a straightforward premise. The President's authority under the Proclamation is "vested" under the Act. TheAct demands, as a "statutory requirement," an "invasion or predatory incursion…." And because the Act's "text and history" use these terms "to refer to military actions indicative of an actual or impending war"—not "mass illegal migration" or "criminal activities"—the Act cannot sustain the Proclamation… The Court agrees with Petitioners….
The term 'invasion' was a legal term of art with a well-defined meaning at the Founding." J.G.G. v. Trump, No. 25-5067, 2025 WL 914682, at *8 (D.C. Cir. Mar. 26, 2025) (Henderson, J., concurring); see also id. (defining "invasion as a "'[h]ostile entrance upon the right or possessions of another; hostile encroachment,' such as when 'William the Conqueror invaded England'") (quoting Samuel Johnson, Invasion, sense 1, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773)); (reciting second dictionary defining "invasion as a "'hostile entrance into the possession of another; particularly the entrance of a hostile army into a country for the purpose of conquest or plunder, or the attack of a military force'") (quoting Noah Webster, Invasion, sense 1, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).
The Court finds these at-the-Founding definitions persuasive in demonstrating what "invasion" does—and does not—mean as a matter of plain language. "Invasions" contemplate military action. J.G.G., 2025 WL 914682, at *9 ("The term 'invasion' was well known to the Fifth Congress and the American public circa 1798. The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense.") (Henderson, J., concurring). And at a bare minimum, "invasion" means more than the Proclamation's description of [the drug gang Tren de Aragua's] "infiltrat[ion]," "irregular warfare," and "hostile actions" against the United States….
Definitions of "predatory incursion" likewise reveal a mismatch between what the phrase means and what the Proclamation says. As with the analysis of earlier definitions of "invasion," the Court again finds Judge Henderson's research and analysis of Founding era definitions for "predatory" and "incursion"—which Petitioners cite, and to which they direct the Court—persuasive in its own analysis of Petitioners' TRO motion. See…. J.G.G., 2025 WL 914682, at *10 (Henderson, J., concurring). Explained in Judge Henderson's concurring statement to the D.C. Circuit's per curiam order denying emergency stays prior to the Supreme Court's ultimate intervention in Trump v. J. G. G., 2025 WL 1024097, at *1, the "predatory" nature of an "incursion" "includes a '[p]lundering,' such as the 'predatory war made by Scotland.'" 2025 WL 914682, at *10 (Henderson, J.,concurring) (original alteration and emphasis) (citing Samuel Johnson, Predatory, sense 1, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773))….
Petitioners contend, as with its failures to identify an "invasion" or "predatory incursion," the Proclamation likewise fails to assert a "foreign nation or government" is "invading the United States…." The Court agrees with Petitioners. The Court discerns little reason to linger on this point, especially where, as Petitioners observe, the Proclamation finds TdA is "closely aligned with [and] infiltrated[] the Maduro regime." Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua, 90 FR 13033. The Proclamation does not find TdA itself is a foreign nation, country, or government. At bottom, the Proclamation fails to adequately find or assert TdA is a "foreign nation or government," § 21, sufficient to justify the Act's invocation.
Judge Sweeney's analysis of the meaning of "invasion"and "predatory incursion" largely tracks that of Judge Karen LeCraft Henderson of the DC Circuit, in her opinion for the DC Circuit, in a ruling reversed by the Supreme Court on appeal, for procedural reasons. I hav made similar points in my own previous writings on the AEA and the meaning of "invasion." Judge Sweeney also follows the DC Circuit and the Supreme Court in rightly rejecting the argument that interpretation of the AEA is a "political question" not subject to judicial review.
But this ruling is the first to address the issue of whether TdA's actions qualify as those of a "foreign nation or government." Judge Sweeney rightly concludes they obviously don't. Her conclusion is further bolstered by US intelligence assessments indicating that TdA is not acting at the behest of the Venezuelan government.
Judge Sweeney also interpreted the Supreme Court's ruling on notice to detainees to require the following:
The Court orders the following regarding the notice Respondents and the government must provide Petitioners and the provisionally certified class of individuals they seek to represent: Respondents shall provide a twenty-one (21) day notice to individuals detained pursuant to the Act and Proclamation. Such notice must state the government intends to remove individuals pursuant to the Act and Proclamation. It must also provide notice of a right to seek judicial review, and inform individuals they may consult an attorney regarding their detainment and the government's intent to remove them. Such notice must be written in a language the individual understands.
That all seems right to me.
Litigation over AEA deportations is continuing in multiple courts, and this ruling is sure to be appealed. But Judge Sweeney has issued a well-reasoned ruling that I hope other judges will follow.
