The Volokh Conspiracy
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Fourth Circuit Rules Against Trump Administration in Alien Enemies Act Case
In a 2-1 ruling, the Court ruled Trump's invocation of the Alien Enemies Act cannot supersede a settlement barring deportation of a group of migrants. One judge also held the AEA was invoked illegally.
Today, in a 2-1 ruling in J.O.P. v. Department of Homeland Security, the US Court of Appeals for the Fourth Circuit ruled that the Trump Administration's invocation of the the Alien Enemies Act of 1798 cannot override a legal settlement barring deportation of a group of migrants. Judge Roger Gregory's concurring opinion (the only one of the three opinions in the case to address the issue) joins a growing list of federal court rulings and opinions holding that Trump's invocation of the AEA is illegal.
The AEA allows detention and deportation of foreign citizens of relevant states (including legal immigrants, as well as illegal ones) "[w]henever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." Four federal judges - three district judges and Judge Henderson of the DC Circuit - have previously ruled that Trump's invocation of the AEA is illegal because there is no declared war, and the activities of the Venezuelan drug gang Tren de Aragua (which Trump cites as justification for invoking AEA) are not an "invasion" or "predatory incursion." Judge Gregory's opinion makes it five. One federal district judge has issued a badly flawed ruling holding that TdA's actions qualify as a "predatory incursion."
In today's Fourth Circuit ruling, Judge Benjamin, joined by Judge Gregory, ruled that Trump's invocation of the AEA - even if valid - could not override a settlement barring deportation of a Venezuelan migrant who was among many illegally deported to imprisonment in El Salvador under Trump's AEA proclamation. In a concurring opinion, Judge Gregory joins the rapidly growing list of judges concluding that Trump's invocation of the AEA is illegal:
The President's ipse dixit declaration that the nation of Venezuela, albeit through
Tren de Aragua ("TdA") as a proxy, has engaged in an "invasion" or "predatory incursion" against territory of the United States is unsupportable. Even worse, the government's argument in this case is that this plainly invalid invocation of the Act can be used to void any and all contractual obligations of the federal government. That cannot be––and is not– –the rule of law.To begin, the AEA has been invoked sparingly and only during wartime….
Before now, the AEA has been invoked only three times during our nation's history:
the War of 1812, World War I, and World War II…. The last of these began the day after the attack on Pearl Harbor in 1941 and was used as the legal mechanism for Japanese internment…. In each of these three instances, judicial review was available to
noncitizens removed or detained, as required by the AEA.Now, for only the fourth time, President Donald Trump has invoked the AEA, and without affording the required process. On March 14, 2025, President Trump signed a
Proclamation invoking his authority under the AEA to apprehend, detain, and remove "all Venezuelan citizens 14 years of age or older who are members of [Tren de Aragua]" and who are not "naturalized or lawful permanent residents of the United States." Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren de Aragua, 90 Fed. Reg. 13,033 (Mar. 14, 2025).Relevant to this case, the invocation of the AEA is being used for an entirely new
purpose: to set aside contractual obligations of the United States…. I have severe difficulty in accepting that the invocation of the AEA can justify the voiding of all contractual obligations of the United States, particularly without any analysis of the legality of that invocation. Thus, I explain briefly why the President's invocation of the Act plainly violates its terms.As mentioned above, the AEA's conditional clause requires (i) "a declared war
between the United States and any foreign nation or government, or" (ii) an "invasion orpredatory incursion [ ] perpetrated, attempted, or threatened against the territory of theUnited States by any foreign nation or government," and (iii) a presidential "public
proclamation of the event…."We need not wade into the thicket of political questions surrounding whether the Maduro regime truly directs the activities of TdA, relevant to whether the supposed invasion is attributable to a "foreign nation or government." That is because, as nearly every court to have reached the question has concluded, TdA's actions cannot constitute an invasion or predatory incursion within the ordinary meaning of the AEA's text. As a sister circuit so thoroughly explained, dictionary definitions, statutory context, and history reveal that "an invasion is a military affair, not one of migration." J.G.G., 2025 WL 914682, at *8–10 (Henderson, J., concurring). As for "predatory incursion," text andhistory again show that the term "referred to a form of hostilities against the United States by another nation-state, a form of attack short of war. Migration alone did not suffice." J.G.G., 2025 WL 914682, at *10; see also J.A.V. v. Trump, --- F. Supp. 3d ---, 2025 WL 1257450, at *15–16 (S.D. Tex. May 1, 2025) (discussing historical records to support idea that "invasion" and "predatory incursion" refer to an attack by military forces); D.B.U. v. Trump, --- F.Supp. 3d ---, 2025 WL 1304288, at *6 (D. Col. 2025) (relying on "Founding-era definitions and historical sources" to conclude the same). I agree that "invasion" and "predatory incursion" require some type of military attack, evidence for which was present in all previous instances where the AEA was invoked.
Turning to the text of President Trump's recent Proclamation, I see no evidence of
any kind to suggest any "invasion" or "predatory incursion" is afoot…. TdA is a brutal
criminal organization, but there is nothing aside from the President's unsupported assertion that suggests any military action within the meaning of the AEA. Thus, I would find that the AEA was illegally invoked in this case.
Like every previous court decision on Trump's use of the AEA, Judge Gregory also concludes that invocation of that statute is not a "political question" exempt from judicial review.
I think Judge Gregory is right on all these points. In previous writings, I have covered the many of the legal flaw with Trump's use of the AEA, including explaining why "invasion" and "predatory incursion" require a military attack, not mere illegal migration or drug smuggling (see, e.g., here, here, here, and here). As James Madison put it, "invasion is an operation of war."
The dissent by Judge Richardson does not address the legality of Trump's invocation of the AEA. It argues that the government should be allowed to deport the migrant in question even aside from that issue. I think the majority has the better of the debate over that question, but will not try to address it here.
