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Court Blocks Deportations Under Alien Enemies Act...the Dissenting Opinion Is Gold

Leah Barkoukis
Leah Barkoukis  |  September 03, 2025 6:55 AM

A federal appeals court blocked the Trump administration from using the Alien Enemies Act to quickly deport suspected Venezuelan gang members.

The 2-1 decision handed down Tuesday night from the 5th U.S. Circuit Court of Appeals granted a preliminary injunction to “prevent removal because we find no invasion or predatory incursion" took place by a foreign power. The Trump administration had argued the illegal immigrants are members of Tren de Aragua, a designated foreign terrorist organization. 

On Tuesday, the judges of the Fifth Circuit, considered one of the country’s most conservative appeals courts, said that their injunction applied only to the use of the Alien Enemies Act, and would not prevent the government from using other lawful means to remove foreign terrorists from the United States.

Until the Supreme Court rules on the case, the appellate court’s decision is binding on lower courts in the same circuit. The Fifth Circuit includes Louisiana, Mississippi and Texas, where deportations under the Alien Enemies Act have taken place.

“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,” the court said. “There is no finding that this mass immigration was an armed, organized force or forces.” (NYT)

Judge Andrew Oldham issued a scathing dissent in response, copied in part below: 

For 227 years, every President of every political party has enjoyed the same broad powers to repel threats to our Nation under the Alien EnemiesAct (“AEA”). And from the dawn of our Nation until President Trump took office a second time, 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,” 50 U.S.C. § 21—depends upon “matters of political judgment for which judges have neither technical competence nor official responsibility.” Ludecke v. Watkins, 335 U.S. 160, 170 (1948).

Time and time and time again, the Supreme Court has instructed that the President’s declaration of an invasion, insurrection, or incursion is conclusive. Final. And completely beyond the second-guessing powers of unelected federal judges. That rule does not only apply to Presidents. It also applies to Governors. In one famous case from the 1930s, for example, the Governor of Texas declared an “insurrection” because some oil barons inEast Texas were pumping too much crude. Sterling v. Constantin, 287 U.S.378, 387 (1932). It seems patently absurd to call profit-maximizing business practices an “insurrection.” But that’s irrelevant. The Supreme Court unanimously held: “By virtue of his duty to ‘cause the laws to be faithfully executed,’ the executive is appropriately vested with the discretion to determine whether an exigency requiring military aid for that purpose has arisen. His decision to that effect is conclusive.” Id. at 399 (emphasis added).

For President Trump, however, the rules are different. 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.

That contravenes over 200 years of legal precedent. And it transmogrifies the least-dangerous branch into robed crusaders who get to playact as multitudinous Commanders in Chief.

I respectfully but emphatically dissent.