Divided Fifth Circuit Blocks Trump’s Use of Alien Enemies Act for Deportations



by Neil Munro 3 Sep 2025

A split three-judge panel has rejected President Donald Trump’s appeal that he can activate special deportation rules when the nation is being damaged by mass migration organized by foreign governments.

“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,” said two of the three judges in the U.S. Court of Appeals for the Fifth Circuit.

Trump says he can activate special deportation powers under the 1798 Alien Enemies Act (AEA) amid what he says is state-backed mass migration from Venezuela and other countries. The law enables that power during a formal military invasion or a loosely-organized “predatory incursion.”

More than 10 million illegal and quasi-legal migrants flooded into the United States under President Joe Biden. Trump’s promise to deport them was a central plank of his 2024 election campaign.

The final decision is expected to be made by the U.S. Supreme Court.

The third judge backed Trump’s claim and scoffed at the two judges’ dismissal of Trump’s argument:

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 two judges who opposed Trump’s claim were appointed by President George W. Bush and President Joe Biden.

The third judge, Leslie Southwick, was also appointed by President George W. Bush.

The two-judge majority wrote:

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.

Biden’s migrants have killed many Americans during crimes, driving accidents, and workplace errors.

https://www.breitbart.com/immigratio...-deportations/