The Alien Enemies Act first came into play this year by an order by President Trump on March 14 to deport several alleged members of the Venezuelan Tren de Aragua gang. On the morning of March 15 U.S. District Judge James Boasberg of the District of Columbia District Court ordered the flights to be halted. This led to five months of back and forth, including Boasberg considering declaring the government attorneys of contempt of court.

An Appellate court decision striking down the use of the Alien Enemies Act was issued on Sept 2.

The case and this decision: W.M.M.; F.G.M.; A.R.P., on their own behalf and on behalf of others similarly situated, Petitioners–Appellants v. Donald J. Trump et al.  United States Court of Appeals for the Fifth Circuit, Northern District of Texas No. 25-10534. 1:25-CV-59.

Excerpts from the majority (2-1) decision:

The Government contends “the AEA [Alien Enemies Act]  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 analysis leads us to GRANT a preliminary injunction to prevent removal because we find no invasion or predatory incursion, conclude on the current record that the updated notice satisfies due process, and REMAND for further proceedings.

[The majority examines the circumstances of the enactment of the Alien Enemies Act and finds the circumstances of the TdA deportation do not justify use of the Act. The majority does not address modern uses of the Act such as during WW2.]

The AEA was enacted at a time when France was using privateers to attack American shipping and two decades after Great Britain had used the Hessians, who were German mercenaries, as part of the army it sent to suppress the American Revolution.

For the AEA to apply, any current method of conducting hostilities suffices without showing it is in some manner comparable to an invasion or predatory incursion as understood in 1798.

Because we accept the President’s factual assertions, the question is whether this interconnectedness makes TdA’s activities in the United States attributable to the Venezuelan government….The AEA was enacted at a time when France was using privateers to attack American shipping and two decades after Great Britain had used the Hessians, who were German mercenaries, as part of the army it sent to suppress the American Revolution. Famously, it was a large contingent of Hessians who were surprised in Trenton when General Washington and his forces crossed the Delaware River on Christmas night 1776.

This factual finding concerning the danger posed by all TdA members is unreviewable by this court, but it is not finding facts that constitute an invasion or predatory incursion.

Due Process

The Supreme Court has instructed that in the context of the AEA, this means “‘detainees must receive notice that they are subject to removal under the Act within a reasonable time and in such a manner as will allow them to actually seek habeas relief’ before removal.” Id. at 1368 (quoting Trump v. J.G.G., 145 S. Ct. 1003, 1006 (2025) (per curiam)). “In order to ‘actually seek habeas relief,’ a detainee must have sufficient time and information to reasonably be able to contact counsel, file a petition, and pursue appropriate relief.” Id. The government conceded at oral argument that it had not responded to Petitioners’ evidence regarding the need for more than seven days’ notice. The undisputed evidence in this case is sufficient to show that seven days’ notice is not reasonably calculated, under all the circumstances, to afford detainees, especially those who are unrepresented, due process under the AEA. At least twenty-one days’ notice is required,