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The US District Court for the Southern District of Texas has now weighed in on the Trump Administration’s invocation of the Alien Enemies Act of 1798, declaring that Tren de Aragua, is a “designated Foreign Terrorist Organization[,] . . . perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” With so much speculation and so many assumptions being made, I want to cut through the BS and get to the truth. Before summarizing the opinion, though, a little background is in order.

The Alien Enemies Act of 1798 is a federal law that grants the president “wartime authority” to detain or deport non-U.S. citizens of enemy countries. It was enacted in 1798 as part of a series of laws known as the Alien and Sedition Acts, aimed at addressing national security concerns during a period of tension with France. The Act can be invoked during a declared war, a perpetrated, attempted, or threatened invasion, or a “predatory incursion” against U.S. territory. Those terms are key to understanding the scope of the Act of a President’s authority to invoke it.

In summary, the Act allows the President to target citizens of a hostile nation or government who are not US citizens in a time of war for detention or deportation, and the this law permits these actions to be taken without a court hearing, based solely on citizenship or country of origin of the targeted persons.

Legal scholars question whether a law that targets people based on the citizenship or country of origin would withstand a constitutional challenge. My understanding is (not having reviewed the relevant caselaw) that the Act has not been challenged in court on constitutional grounds, and the present case involving Venezuelan immigrants does not include a constitutional challenge. Therefore, the constitutionality of the Act has not been addressed.

The Act has been invoked only three times in U.S. history: during the War of 1812, World War I, and World War II. This law was the authority cited for the detentions, expulsions, and restrictions targeting German, Austro-Hungarian, Japanese, and Italian immigrants based on ancestry during WWII, and it was the justification alleged for Japanese internment.

The Act is a war power. It is triggered by 1) a congressional declaration of war; 2) a presidential determination of threatened or actual invasion; or 3) a presidential determination of threatened or actual “predatory incursion”. Only Congress can declare war, but the President has the authority to repel sudden attacks (invasions or “predatory incursions”).

Obviously, the ability of a President to invoke the Act without an act Congress requires an invasion or “predatory incursion”. Congressional intent can be gleaned from the way those terms were used in the late 1700’s. According to the Brennan Center for Justice,

“In the Constitution and other late-1700s statutes, the term invasion is used literally, typically to refer to large-scale attacks. The term predatory incursion is also used literally in writings of that period to refer to slightly smaller attacks like the 1781 Raid on Richmond led by American defector Benedict Arnold.”

See The Alien Enemies Act, Explained, Brennan Center for Justice, Katherine Yon Ebright, May 1, 2025

Recent groups have encouraged a non-literal interpretation of the terms to address illegal immigration and trafficking “based on a migrant ‘invasion’ or ‘predatory incursion’ perpetrated by a cartel alleged to be acting as a de facto foreign government.” That creative reading of the law, however, “is at odds with centuries of legislative, presidential, and judicial practice, all of which confirm that the Alien Enemies Act is a wartime authority. (See The Alien Enemies Act, Explained)

The Act has only ever been used in the context of war declared by Congress. President Truman’s invocation of the Act to detain prisoners as late as 1951 was allowed with deference on the presidential determination of when a war terminates (WWII), but the Act has never been used in the history of the nation outside of a declared war.

The Brennan Center for Justice, a progressive non-profit think tank, notes that Fifth Amendment protections apply against discrimination on the basis of race, ethnicity, nationality, etc. For these reasons, they say, courts and presidents have apologized for the Japanese interment during WWII, and scholars have generally held that the Japanese interment was mistaken, if not blatantly unconstitutional. Other legal issues undermine the validity of the law as well. (See The Alien Enemies Act, Explained)  

With that background and explanation of the Alien Enemies Act of 1798. Let’s turn to the opinion that was handed down On May 1, 2025. The opinion is authored by a conservative judge (who happens to be an Evangelical Christian) appointed by President Trump. It recounts the history of the Act with detail and technical fluidity that I will try to explain by focusing on the key language. For the legal nerds among us, you can read the 36-page opinion yourself. (See J.A.V. et al., v. Donald Trump, Civil Action No. 1:25-CV-072 (So. Dist. TX)(5-1-2-25))

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The Court opinion recounts the recent history of instability in Venezuela and executive orders issued by President Obama impacting financial dealings with Transnational Criminal Organizations (“TCO”s) during his terms in office. Tren de Aragua (“TdA”) was placed on the TCO list in July of 2024. The Trump Administration invoked the Alien Enemies Act on the basis that “Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA” and declared their presence in the US a predatory incursion.  

The petitioners seeking relief are referenced by their initials. J.A.V. entered the US seeking asylum. He was arrested at his asylum interview, though he denied involvement in the TdA, and he was moved from prison to prison until he was deported with no hearing. Another petitioner, J.G.G., came to the US he says to escape torture because of a family member who is a political dissident. They and others are representatives of the class of petitioners that include Venezuelans targeted by the invocation.

A temporary restraining order was originally entered by a judge in the District of Columbia, but the US Supreme Court dissolved it on technical, jurisdictional grounds, ruling that it would have to be filed in the State of Texas where the men are being held. This is part of due process: the proper protocols must be observed.

The Administration claimed that the Court had no jurisdiction to address the issue because is a “political question” that is solely within the authority of the President to determine. The Court addressed the “political question” argument in depth and with deference to the Executive Branch on matters of pure political questions. At the end of a highly technical analysis, the Court found, “construing the language of the AEA does not require courts to adjudicate the wisdom of the President’s foreign policy and national security decisions. Determining what conduct constitutes an ‘invasion’ or ‘predatory incursion’ for purposes of the AEA is distinct from ascertaining whether such events have in fact occurred or are being threatened.”

The Court’s determination of the scope of the Act and compliance with its terms is squarely in the long-established wheelhouse of the Judicial Branch. The interpretation of the Act turns on the meaning of “invasion” and “predatory incursion”, and ruling on the interpretation statutory language is what courts do every day based on time-tested standards of interpretation.  

On the definitions of “invasion” and “predatory incursion”, the Administration offered little in support of its interpretation. The Court referenced historical records of the time using those terms. They predominantly were used to mean “an attack by military forces” or “an organized group of armed individuals entering an area to attack a fort, settlement, or town” that triggered a “need for a military response to the entry.”

The only applications of those terms in judicial decisions relate to war and military authority. The only legislative history in 1798 when the Act was passed included dialogue about the meaning of “predatory incursion”. The court found, “The usage in this record suggests that the members viewed ‘predatory incursion’ as a term implicitly referencing a ‘serious attack.’” The Constitution uses the term, invasion, only in a military context, and that was been interpreted to mean “armed hostilities from another political entity, such as another state or foreign country.” (Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996))

The court noted, also, that Article I, Section 10, Clause 3 of the US Constitution provides “that a state may not ‘engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.’  This use of the related term, ‘invaded,’ expressly concerns warfare…. [meaning] entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory.”

An examination of the relevant history and context of the passage of the Act and the plain meaning of the words used in the Act provides a clear understanding of the limitations of the authority to invoke the Act. In that light, the Court ruled that “the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute’s terms.”

In reaching this decision, the Court does not question that the presence of TdA gang members in the US is a threat to public safety; nor does the Court question the Administration’s power to address the threat. The Court funds, however, that the Administration has no authority to rely on the Alien Enemies Act to address that threat. Even if all the claims made the Administration are accepted as true, they don’t amount to an “invasion” or “predatory incursion” within the plain meaning of the Act.

“The Proclamation makes no reference to and in no manner suggests that a threat exists of an organized, armed group of individuals entering the United States at the direction of Venezuela to conquer the country or assume control over a portion of the nation.  Thus, the Proclamation’s language cannot be read as describing conduct that falls within the meaning of ‘invasion’ for purposes of the AEA.  As for “predatory incursion,” the Proclamation does not describe an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives.  While the Proclamation references that TdA members have harmed lives in the United States and engage in crime, the Proclamation does not suggest that they have done so through an organized armed attack, or that Venezuela has threatened or attempted such an attack through TdA members.  As a result, the Proclamation also falls short of describing a ‘predatory incursion’ as that concept was understood at the time of the AEA’s enactment.”

J.A.V. et al., v. Donald Trump, Civil Action No. 1:25-CV-072 (So. Dist. TX)(2025)

I think it’s important to observe that this decision was made by a judicial appointee chosen by Donald Trump. He is also an Evangelical Christian, so the term, “liberal judge,” doesn’t apply. Both the progressive Brennan Center for Justice and the conservative judge agreed on the interpretation and application of the Alien Enemies Act.

As an attorney for the last 35 years with an interest in history and jurisprudence, I see things that the average person doesn’t see in the judiciary. The common assumption is that the political leanings of judges determine their decisions. The whole purpose of an independent judiciary that is appointed for life is to encourage them to be apolitical in their rulings.

I am not going to say that political leanings never influence judges, because they most certainly do. Judges, however, are required to interpret the law according to longstanding rules of interpretation, and justify their decisions in written detail. These requirements keep judges “honest” and mitigate against purely politically motivated rulings.

Time and again I have observed judges who may lean left or may lean right make decisions based on the law that runs counter to their leanings. Indeed, that is exactly what judges are required to do. This case is no different than the many cases in which other judges have done exactly that for generations.

The case is not over. I expect that the Administration will appeal the case to the Appellate Court, and whoever prevails on appeal will likely appeal to the US Supreme court. That is the way our system works, and that is the way it ought to work. We will have to wait for the case to make its way up the ladder of review to the top before an ultimate decision is made that will settle the score once and for all on President Trump’s invocation of the Alien Enemies Act to deport alleged Venezuelan gang members without due process for them.

(The issue of whether due process is required, even for non-citizens, is not the subject of this Article, but I direct the reader (if anyone has any doubt) to the Annotated U.S. Constitution online for a synopsis of interpretations of the Fifth and Fourteenth Amendments: holding that due process applies even to non-citizens. The extent of the due process that applies is less clear, but there is no doubt that it applies. This is the reason why President Trump invoked the Alien Enemies Act in the first place: because it does not apply to enemy aliens during a time of war.

The requirements of due process, at a minimum, require the government to provide some proof to a neutral arbiter of the allegations they claim. It’s not sufficient simply to claim that a person is a member of the TdA gang; the government is required to offer proof and to give the alleged person an opportunity to rebut the proof.)