Earlier today, the US Court of Appeals for the DC Circuit upheld a district court temporary restraining order blocking the Trump Administration from using the Alien Enemies Act of 1798 to deport Venezuelan migrants it claims are members of the Tren de Aragua drug gang. The Alien Enemies Act is the only one of the notorious Alien and Sedition Acts of 1798 still in force. But the Act can only be used in the event of a declared war, or an “invasion” or “predatory incursion” perpetrated by a “foreign nation or government.”
The ruling was a 2-1 decision. Judge Karen LeCraft Henderson (appointed by George H.W. Bush) and Judge Patricia Millett (appointed by Obama) each issued separate opinions upholding the trial court TRO for somewhat different reasons.
Judge Henderson’s opinion primarily emphasizes the point that there is no war, invasion, or predatory incursion going on, and therefore the legal preconditions for invoking the AEA have not been met. She includes an excellent analysis of the meaning of “invasion”:
First, the invasion must be “against the territory of the United States by any foreign nation or government.” 50 U.S.C. § 21 (emphasis added). The requirement that the “invasion” be conducted by a nation-state and against the United States’ “territory” supports that the Congress was using “invasion” in the military sense of the term See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 131 (1807) (describing levying war against the United States as “a military enterprize . . . against any of the territories of the United States”); Wiborg v. United States, 163U.S. 632, 633 (1896) (explaining that a group of seamen were charged with preparing for a “military expedition . . . against the territory and dominions of a foreign prince”). Undesired people do not arrive against the territory. But foreign armies can—and as the 1798 Congress feared might—invade the territory of the United States. Second, the invasion may be actual, “attempted, or threatened.” 5 U.S.C. § 21. Again, when used in reference to hostilities among nations, an attempted or threatened invasion of the United States would mark a logical trigger for enhanced presidential authority. Third, and relatedly, the conditional list of triggering events—a declared war, invasion or predatory incursion—must be read against the means the Congress employed to combat the same. The AEA authorizes the President to restrain and remove the nationals of a belligerent foreign power. Such power tracks when invasion is considered in its military sense.
Finally, consider history. The Alien Enemies Act was enacted by the Fifth Congress amid an actual conflict—the Quasi-War—with France, a foreign power. War was front and center in the minds of the enacting legislature. A little over one month before enacting the AEA, the same Congress authorized the President to raise a standing army of 10,000 men to combat any French invasion. But he could do so only “in the event of a declaration of war against the United States, or of actual invasion of their territory, by a foreign power, or of imminent danger of such invasion.” Act of May 28, 1798, ch. 47, § 1, 1 Stat. 558. This language bears more than a passing resemblance to the language of the AEA, which the Congress enacted a mere thirty-nine days later. In his most famous exposition against the Alien and Sedition Act, Madison explained that an “[i]nvasion is an operation of war.” James Madison, Report of 1800 (Jan. 7, 1800), in Founders Online [https://perma.cc/2D3N-N64Z]. In such times, the “law of nations” allowed for the expulsion of alien enemies as “an exercise of the power of war.” Id…..
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. For example, the Guarantee Clause provides that “[t]he United States shall . . .protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” U.S. Const. art. IV,§ 4. The clause is a federal guarantee to the states against attack from without (invasion) or within (insurrection). In describing the clause, the Federalist Papers refer to invasion and domestic violence as “bloody” affairs involving “military talents and experience” and “an appeal to the sword.” The Federalist No. 44 (J. Madison). To effectuate the guarantee the Congress has power “[t]o provide for calling forth the Militia to . . . suppress Insurrections and repel Invasions.” U.S. Const. art. I, § 8, cl. 15. Again, to use military force against invasion. During these exigent times of hostilities—”in Cases of Rebellion or Invasion”—the Congress may suspend “The Privilege of the Writ of Habeas Corpus . . . when . . . the public Safety may require it.” Id. art. I, § 9, cl. 2. Finally, if the federal guarantee fails, a state may exercise its Article I power to “engage in War” but only if “actually invaded, or in such imminent Danger as will not admit of delay.” Id. art. I, § 10, cl. 3. When the Constitution repeats a phrase across multiple clauses—and the early Congresses echo that phrase in statute— it is a strong signal that the text should be read in pari materia…. The theme that rings true is that an invasion is a military affair, not one of migration.
I agree on all points, and have made similar arguments in my earlier writings about this issue. In particular, I have emphasized that the meaning of “invasion” in the AEA tracks the meaning of the same term in the Constitution. If courts accept the Trump argument that illegal migration and drug smuggling qualify as “invasion,” that would have dire constitutional implications, such as enabling states to “engage in war” in response and the federal government to suspend the writ habeas corpus (including for US citizens) virtually anytime it wants.
Judge Henderson also presents what I think is the first judicial interpretation of the meaning of “predatory incursion”:
The government finds no safer refuge in the alternative “predatory incursion.” The government defines the term as “(1) an entry into the United States, (2) for purposes contrary to the interests or laws of the United States.” Gov’t Br. 18. And it explains that illegal immigration and drug trafficking readily qualify under that standard. As before, the government misreads the text, context and history. An incursion is a lesser form of invasion; an “[a]ttack” or “[i]nvasion without conquest.” Samuel Johnson, Incursion, senses 1 & 2, A DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 1773). Its predatory nature includes a “[p]lundering,” such as the “predatory war made by Scotland.” Id., Predatory, sense 1. Secretary of State Thomas Pickering used the term to describe a lesser form of attack that France could conduct against the U.S. and which, in his view, could be repelled by the militia. See Letter from Thomas Pickering to Alexander Hamilton (June 9, 1798), in Founders Online [https://perma.cc/VD5M-QSNA]. This was raised in contradistinction to a full invasion, which would require an army. Id. Rep. Otis likewise described a predatory incursion as a lesser form of invasion or war. 8 Annals of Cong. 1791 (1798). Early American caselaw sounds a similar theme: incursions referred to violent conflict. Alexander Dallas, appearing before the Marshall Court, described “predatory incursions of the Indians” onto Pennsylvania’s frontier, which had led to “an Indian war.” Huidekoper’s Lessee v. Douglass, 7 U.S. (3 Cranch) 1, 11 (1805). Chief Justice Marshall referred to “incursions of hostile Indians,” which involved “constant scenes of killings and scalping,” and led to a retaliatory “war of extermination. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 10 (1831); accord Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 545 (1832) (explaining that Pennsylvania’s royal charter included “the power of war” to repel “incursions” by “barbarous nations”). Like its statutory counterparts, predatory incursion 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.
I think Judge Henderson is also right on this point, though the historical evidence here is not as extensive as in the case of “invasion.”
Judge Henderson notes she does not definitively resolve whether Tren de Aragua’s actions qualify as an “invasion” or a “predatory incursion,” merely concluding that the government isn’t likely to prevail on these points (which is enough to uphold the trial court TRO). But I think it’s clear the government cannot prevail under her (correct definitions) of these terms.
In this opinion, Judge Henderson does not consider the issue of whether Tren de Aragua is a “foreign nation or government.” But I think it’s pretty obvious that it isn’t, and this is an additional reason to rule against the Trump Administration.
In assessing whether an injunction is justified to block the deportations, Judge Henderson properly highlights the extreme egregiousness of the government’s actions, under which the Venezuelan migrants have not simply been deported, but sent to imprisonment in El Salvador, often with little or no evidence that they are actually members of any drug gang or have committed any other crime:
The Executive’s burdens are comparatively modest compared to the plaintiffs’. Lifting the injunctions risks exiling plaintiffs to a land that is not their country of origin…. Indeed, at oral argument before this Court, the government in no uncertain terms conveyed that—were the injunction lifted—it would immediately begin deporting plaintiffs without notice. Plaintiffs allege that the government has renditioned innocent foreign nationals in its pursuit against TdA. For example, one plaintiff alleges that he suffered brutal torture with “electric shocks and suffocation” for demonstrating against the Venezuelan regime. Id. (D.D.C. Mar. 19, 2025), ECF No. 44-5 ¶ 2. While awaiting adjudication of his asylum claim, he was expelled to “El Salvador with no notice to counsel or family” based on a misinterpretation of a soccer tattoo. Id. ¶¶ 5–7. To date, his family and counsel have “lost all contact” and “have no information regarding his whereabouts or condition.” Id.¶ 10. The government concedes it “lack[s] a complete profile” or even “specific information about each individual” it has targeted for summary removal….
Judge Millett’s opinion emphasizes the lack of due process provided to the deportees. They were not given any opportunity to challenge the government’s claims (often based on extremely flimsy evidence or none at all) that they are members of Tren de Aragua. Here reasoning is similar to that of the recent district court ruling in the case, which I analyzed here. However, she goes beyond the district court in emphasizing that the right to a hearing here is not simply statutory, but is rooted in the Due Process Clause of the Fourteenth Amendment.
I emphatically agree, and made a similar argument here. As Judge Millett also explains, the right to due process here is not just an abstract issue of legal theory. The government’s denial of due process has apparently led to the deportation and cruel imprisonment of many people who are not actually members of any drug gang and haven’t committed any crime.
In his dissent Judge Justin Walker (appointed by Trump) does not address any of the substantive issues in the case. Rather, he argues it should have been brought in Texas (where the five named plaintiffs are currently detained by ICE), rather than in Washington, DC.I find the majority judges’ analysis on this more persuasive than Walker’s. But I am not expert in these types of procedural issues, so will leave them to others.
Overall, this is a significant win for the detained migrants. And it’s notable that—so far—not one judge has endorsed the administration’s ultra-broad theory of executive power here. But, obviously, this litigation is going to continue.
The administration may try appeal the DC Circuit ruling to the Supreme Court. If not, or if the justices refuse to take the case at this time, we will see a final ruling on the merits in the district court (which will, I think, almost certainly go against the administration), followed by further appeals.
