Today, the US Court of Appeals for the DC Circuit support The district court’s temporary restraining order blocking the Trump administration from using the alien enemy law of 1798 to banish Venezuelan immigrants, claims to be a member of Tren de Lagua’s drug group. The alien enemy law is one of the infamous alien and incitement laws of 1798, and is still in force. However, this law can only be used in cases of declared wars or “invasions” or “predatory invasions” committed by “foreign or government.”
The ruling was 2-1. Judge Karen Lecraft Henderson (appointed by George HW Bush) and Judge Patricia Millett (appointed by Obama) each issued separate opinions in favour of Trial Court Tro for a slightly different reason.
Judge Henderson’s opinion emphasizes that no war, aggression or predatory aggression has occurred, so the legal prerequisites for calling the AEA are not met. She has a great analysis of the meaning of “invasion.”
First, there must be an invasion.”Against 50USC§21 (emphasis added). The requirement that “aggression” be carried out by nation-states, and the requirement to oppose the US “territories” support Congress’s use of “aggression” in the military sense. Ex Parte Bollman8 US (4 Cranch) 75, 131 (1807) (to describe the collection war against the United States as “a military enterprise against any of the US territory”)); Wiborgv. UnitedStates163 U.S. 632, 633 (1896) (explaining that a group of seafarers were “accused of in preparation for a “military expedition” against the territory and territory and rule of foreign princes). Undesired people do not arrive in the territory. However, foreign troops can invade US territory, as the 1798 Congress feared. Second, the invasion may in fact be “attempted or threatened.” 5USC§21. Again, when used in connection with hostility between nations, attempts or threatened aggression by the United States would be a logical trigger for the strengthened presidential authorities. Third, relatedly, a conditional list of trigger events (declared war, aggression, or predatory aggression) is not read for the means adopted by Congress to combat the same thing. The AEA allows the president to restrain and eliminate wary foreign citizens. Such powers track when invasions are considered in a military sense.
Finally, consider history. The alien enemy law was enacted by the 5th Parliament in the real conflict with France (quasi-war), foreign powers. The war was the forefront and center in the minds of the enacted parliament. In just over a month before enacting the AEA, the same parliament approved the president to raise 10,000 resident forces to combat French invasions. However, he could only do “in the case of a declaration of war against the United States, or in the case of actual invasion of their territory, foreign power, or the imminent danger of such an invasion.” Act of May 28, 1798, ch. 47, §1, 1 statistics. 558. The language has more than similarities to the AEA language, and Congress enacted it just 39 days later. At his most famous exposition against aliens and incitement, Madison said, “[i]Nvasion is a war operation. “James Madison, Report of 1800 (January 7, 1800), in Online Founder [https://perma.cc/2D3N-N64Z]. In such an era, the “laws of the state” allowed the alien enemies to be expelled as “the exercise of the power of war.” id….
The term “invasion” was well known to the American people around the 5th Congress and around 1798. This phrase is reflected in the entire Constitution, which was ratified just nine years ago. And in all examples it is used in a military sense. For example, the warranty clause provides that.”[t]He will be the United States. . . Protect each [State] against invasion; and regarding the application of Congress or against domestic violence (when Congress is not convened). “The US Constitution is Art. iv, §4. The clause is a federal guarantee to the state against attacks from (invasion) or (invasion) or (invasion). 44 (J. Madison).[t]o Provide to call militias. . . “Suppress the rebellion and repeatedly invade,” US const. Art. I, §8, cl. 15. Again, they use military force against invasion. These times of hostile hostility – “the case of rebellion or invasion.” . when . . . Id. Art. I, §9, Cl. 2. Finally, if federal guarantees fail, the state can only exercise the article if “engage in war” “actually invade.” A strong signal that text needs to be read in Parimateria…. The truth is that invasion is a military event, not one of migration.
I agreed to all the points and had a similar argument in me Previously Text About this issue. In particular, I emphasized The meaning of “aggression” in the AEA is to track the meaning of the same term in the constitution. If the court accepts Trump’s argument that illegal migration and drug smuggling are eligible as “aggression,” it would have disastrous constitutional implications, such as allowing the state to “enter war” and allowing the federal government to halt warrant habeas corpus (including US citizens) at any time.
Judge Henderson also presents what I think is the first interpretation of the judicial interpretation of the meaning of “predatory invasion.”
The government has not found safe shelters due to alternative “predatory invasions.” The government defines the term as “(1) for purposes that are contrary to American interests or laws, and (2) entry into the United States.” Gov’tBR. 18. And it explains that illegal immigration and drug trafficking are easily qualified based on that standard. As before, government misunderstands texts, contexts and history. Invasion is not a form of invasion. ”[a]ttack “or”[i]Nvasion without conquest. “Samuel Johnson, incursion, senses 1 & 2, Dictionary of English (4th ed. 1773). Its predatory nature is[p]Lost things like “a war of plunder created by Scotland.” id. , stolenfeeling 1. Secretary of State Thomas Pickering used the term to describe the fewer forms of attacks that France could make against the United States and, in his view, could be repelled by militias. See Thomas Pickering’s Letter to Alexander Hamilton (June 9, 1798). [https://perma.cc/VD5M-QSNA]. This was raised in contrast to a complete invasion that required an army. id. Similarly, Rep. Otis described predatory invasions as a form of invasion and war. Kong’s 8th. 1791 (1798). Early American caselaw has heard a similar theme. The intrusion refers to violent conflict. Appearing before the Marshall Court, Alexander Dallas described the “predatory Indian invasion” to the Pennsylvania frontier that led to the “war of India.” Huidekoper’s borrower v. Douglass7 US (3 Cranch) 1, 11 (1805). Judge Marshall referred to “hostile Indian invasions,” including “a constant scene of murder and scalping,” leading to a retaliatory “war of extinction.” Cherokee Nation V. Georgia30 US (5 Pets) 1, 10 (1831); Accord Worcester vs Georgia31 US (6 Pet.) 515, 545 (1832) (explains that the Pennsylvania Royal Charter includes the “power of war” to repel “invasions by “wild countries”). Like its legal counterpart, predatory invasion referred to forms of hostilities against the United States by another state, the form of attack that led to war. The transition alone wasn’t enough.
I think Judge Henderson is right in this regard, but the historical evidence here is not as broad as in the case of “invasion.”
Judge Henderson said he has not clearly resolved whether Tren de Aragua’s actions qualify as an “invasion” or “predatory invasion.” But I think it is clear that the government cannot win under her (the correct definition) of these conditions.
In this opinion, Judge Henderson does not consider the question of whether Tren de Aragua is a “foreign country.” But I think that’s pretty obvious it’s notand this is an additional reason to control the Trump administration.
In assessing whether the injunction justifies blocking deportation, Judge Henderson appropriately highlights the extreme subtlety of the government’s actions sent to the imprisonment in El Salvador, where Venezuelan immigrants were not merely deported, but were actually members of drug gangs, or had little or no evidence of committing other crimes.
The burden on executives is relatively modest compared to plaintiffs. If the injunction is lifted, there is a risk that the plaintiff will be expelled to a land not in his country of origin… Certainly, in the oral debate before this court, the government, on uncertain terms, did not inform the injunction that the injunction was lifted – which would soon begin to deport the plaintiffs without notice. The plaintiffs allege that the government staged innocent foreigners in their pursuit of the TDA. For example, one plaintiff claims he suffered brutal torture with “electric shock and choking” in opposition to the Venezuelan regime. id. (March 19, 2025), ECF No. 44-5¶2. While awaiting the award of his asylum claim, he was exiled to “El Salvador” “without notification to lawyers or family members” based on a misconception of a football tattoo. id. ¶¶5–7. To date, his family and lawyers have “lost all contact” and “have no information on his whereabouts or status.” Id.¶10. The government has accepted that[s] The targeted “or “specific information about an individual” is “or “even number”” targeted for summary deletion.
Judge Millett’s opinion highlights the lack of legitimate procedures provided to deportees. They were not given the opportunity to challenge the government’s claim that they were members of Tren de Aragua (often based on very thin evidence or not at all). Here, similar to the reasoning of recent district court decisions in the cases analyzed here. However, she goes beyond the district court to emphasize that the right to hearing here is not merely a statutory rule, but is rooted in the legitimate process provisions of Article 14.
I stressed and agreed, and made a similar argument here. As Judge Millett explains, the rights to the legitimate process here are not merely abstract matters of legal theory. The government’s denial of due process apparently leads to the deportation of many and cruel incarceration. People who are not actually members of drug gangs and are not committed crimes.
In his dissent, Judge Justin Walker (appointed by Trump) has not addressed any of the substantial issues in the case. Rather, he argues that it should have been brought to Texas (the plaintiffs with five names are now in ice-bound states) rather than in Washington, D.C. However, I am not an expert on these types of procedural issues so I leave it to others.
Overall, this is a huge victory for detained immigrants. And it is worth noting that so far, a judge has not supported the administration’s ultra-broad theory here. But obviously, this lawsuit will continue.
The administration can attempt to appeal the DC Circuit’s decision to the Supreme Court. If not, or if Justice refuses to file a lawsuit at this time, we will see the final ruling on the merits of the District Court (I think it almost certainly opposes the administration) and appeal further.
