The first eight months of the second Trump administration have shown that breaking norms should be considered the new normal, particularly when it comes to executive power and "national emergencies." The Trump administration has declared eight national emergencies so far, said more are on the way, and has argued that Venezuela is invading the U.S through an organized "predatory incursion."
However, not all attempts to increase presidential powers have met with success. Among other recent setbacks, the Fifth Circuit Court of Appeals ruled on September 2, 2025, that President Donald Trump's deportation of Venezuelan immigrants alleged to be gang members without due process wasn't covered by a rarely-invoked 18th-century law giving the president wartime powers during an invasion.
On remand from the U.S. Supreme Court (SCOTUS), the decision is one of many federal court rulings taking issue with the denial of rights that are commonplace with the administration's aggressive immigration policies. It is the first time an appellate court has rejected President Trump's use of the Alien Enemies Act (AEA) for deporting immigrants without due process. The case is almost certainly destined for another visit to SCOTUS, but what else does this ruling mean?
When Is a Tattoo Just a Tattoo?
The U.S. hasn't officially declared war since 1941, but President Trump accessed wartime powers through the AEA, which was passed in 1798. It allows for the removal of aliens when a country is attempting or threatening an "invasion or predatory incursion." After invoking the AEA in March 2025, President Trump had hundreds of Venezuelan immigrants rounded up and deported without due process to a prison in El Salvador.
Claiming that they were members of Tren de Aragua (TdA), a criminal gang, he used the AEA to remove them under the pretense that they were carrying out an invasion as defined in the AEA. Subsequent investigations discovered that the majority of people removed through this action had no criminal record at all and weren't in the U.S. illegally. Some had been rounded up and removed because they had tattoos, which the administration alleged was proof of gang membership.
The American Civil Liberties Union (ACLU) filed an emergency petition to SCOTUS in April 2025 to challenge President Trump's invocation of the AEA. Seeking to stop further pending removals without due process, the ACLU won an extremely narrow emergency ruling that required the ability to contest deportations threatened under the AEA.
It did not allow those who were already deported to plead their cases to return to the U.S. They were later returned to Venezuela in a prisoner exchange.
With All Due Respect
After issuing the emergency order, SCOTUS remanded the issue to the Fifth Circuit to determine two issues: whether the factors for a preliminary injunction to block removal had been satisfied and whether the Government’s notice to these individuals of their removal satisfied due process.
The 2-1 decision went against President Trump. The majority found that the Venezuelan nationals who came to America were not "an armed, organized force or forces" and that their immigration was not a military-style invasion over U.S. borders. That in itself was conclusive, but the majority went on to explain that TdA did not constitute a “foreign nation or government.” As such, the Trump administration could not invoke the use of the AEA. The majority also kept the provision requiring a week's notice for those who will be facing deportation, which allows them to prepare their defense before being deported.
The contrasting vote on the panel belonged to Judge Andrew Oldham, a Trump appointee. In his (lengthy!) 131-page dissent, Judge Oldham argued that it was not for the judicial branch to question Trump about when an invasion occurs, writing that the majority treated Trump "as if he were some run-of-the-mill plaintiff in a breach-of-contract case" instead of the President of the United States. Judge Oldham cited the 1948 SCOTUS case Ludeke v. Watkins to support his position that the judicial branch was prohibited from interpreting the Alien Enemies Act in such a way. The dissent also relied heavily on the 1827 decision Martin v. Mott, which held that the judicial branch could not interpret whether the President could call up a state militia under the Militia Act of 1795.
The majority, however, countered that nothing in Ludeke prohibited the judicial branch from interpreting the AEA, and did so in Ludeke and two others, the most recent being 1952's Jaegeler v. Carusi. As for Mott, the majority said that the question over a president's ability to call up the National Guard is currently also being litigated in courts, and even if Mott's nearly 200-year-old holding remains unchanged, calling up the National Guard in response to an invasion is distinguishable from removing aliens without due process.
What's Next?
Further action by the federal government is basically guaranteed. It can either request an en banc Fifth Circuit hearing or petition SCOTUS. Whatever they decide, the protections granted to Venezuelans will remain in place until the matter is finally resolved.
Related Resources
- How To Fight Wrongful Deportation (FindLaw's Law and Daily Life)
- What Is the Unitary Executive Theory? (FindLaw's Law and Daily Life)
- Immigration Law Overview (FindLaw's Learn About the Law)
