A divided federal appeals court has rejected President Donald Trump’s bid to invoke special deportation powers under the 1798 Alien Enemies Act (AEA) in response to mass migration from Venezuela and other countries.
Fifth Circuit Panel Split
In a 2–1 ruling, the U.S. Court of Appeals for the Fifth Circuit said foreign governments encouraging illegal migration cannot be treated the same as a military invasion.
“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, disrupt, or otherwise harm the United States,” wrote the two-judge majority.
The ruling came after the Supreme Court had remanded the case, instructing the Fifth Circuit to weigh all relevant issues. A final decision is expected to be made by the Supreme Court.
Trump’s Argument
Trump argued that mass migration orchestrated or tolerated by hostile states—particularly Venezuela—constitutes a “predatory incursion,” a term used in the Alien Enemies Act.
The AEA gives the president authority to detain and deport foreign nationals during a war, invasion, or predatory incursion. Trump maintains this authority applies now, given the scale of migration since President Joe Biden took office.
More than 10 million illegal and quasi-legal migrants have entered the United States since 2021. Trump’s pledge to deport them was a central plank of his 2024 election campaign.
The Dissent
Judge Leslie Southwick, appointed by President George W. Bush, dissented sharply.
“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,” Southwick wrote.
“For President Trump, however, the rules are different. Today the majority holds that President Trump is just an ordinary civil litigant … That contravenes over 200 years of legal precedent.”
Broader Implications
The two judges in the majority were appointed by George W. Bush and Joe Biden. They acknowledged the administration’s argument that the AEA grants near-“unlimited” power to the president in cases of invasion or incursion but concluded no such event exists.
“We have just held that there was no ‘invasion or predatory incursion,’ and therefore the AEA does not apply,” they wrote.
What’s Next
The case now heads back toward the Supreme Court, which will likely decide whether Trump can wield wartime powers to expedite deportations in response to mass migration.
Meanwhile, Republicans highlight that Biden’s immigration policies have fueled violent crime, drug trafficking, and fatal accidents involving illegal migrants.
