A split three-judge panel rejected President Donald Trump’s appeal to activate special deportation rules under the 1798 Alien Enemies Act amid what he argues is an organized, state-backed migration drive from places like Venezuela. The majority said the statute does not cover this kind of modern pressure campaign.
“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 two judges wrote.
Trump’s position is clear: the AEA authorizes decisive action during a formal invasion or a loosely organized “predatory incursion,” and today’s mass flows—turbocharged by hostile regimes—fit the latter. He ran on restoring the rule of law after more than 10 million illegal and quasi-legal entrants poured in under Joe Biden, and he promised removals at scale.
One judge agreed with Trump and blasted the majority’s move to second-guess the Commander in Chief on national defense judgments.
“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…
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.”
The panel’s makeup underscored how sharp the divide is. The two judges in the majority were appointed by President George W. Bush and President Joe Biden. The dissenter, Judge Leslie Southwick, was also appointed by President George W. Bush.
The majority insisted courts can and should police the limits of the AEA, downplaying the White House’s assessment of foreign-backed incursions.
“The Government contends “the AEA grants the President a near ‘unlimited’ authority to identify and countermand foreign invasions or predatory incursions.” In its view, it is not for the courts to question the President’s assertion that the actions of TdA members constitute an invasion or predatory incursion by a foreign government.
“Our understanding is that to some extent at least, the distinction between a predatory incursion and an invasion turns on the enemy’s objectives, something often unknowable but, also, largely irrelevant under the AEA.”
“We have just held that there was no ‘invasion or predatory incursion,’ and therefore the AEA does not apply. Nonetheless, the Supreme Court remanded the case to this court to address all relevant issues,” the judges wrote.
The ultimate call will be made by the Supreme Court. That is where the constitutional question belongs: how much deference does a president get when he says a foreign-driven incursion threatens the country, and can century-old tools be used against twenty-first century hybrid warfare?
The real-world context is impossible to ignore. Americans have watched border chaos break communities, strain services, and unleash cartels. Biden’s migrants have killed many Americans during crimes, driving accidents, and workplace errors. Voters chose a course correction, and they expect strong authority to stop the damage.
Trump’s record is to act—declare the emergency, build barriers, cut off incentives, and remove those here illegally—while pushing legal boundaries to protect the nation. The AEA is part of that toolbox. If the High Court restores presidential latitude, removal operations can accelerate and foreign regimes will think twice about weaponizing migration.
If judges keep moving the goalposts, the message to hostile actors is that America’s hands are tied by process while our communities pay the price. That cannot stand. Sovereignty means we decide who comes in—and we have the power to send home those sent here to overwhelm our laws.
This fight is about defending the border and the Constitution’s separation of powers. Trust the voters’ mandate, back the president’s duty to protect the country, and end the incentives that fuel this crisis. It’s time to secure the border, restore order, and put American families first—no excuses, no surrender.