We have previously opined at this site about the Biden administration’s lax policies on the southern border, enabling a massive influx of aliens, amongst them large numbers of gang members, traffickers, and common criminals. We also have covered the new Administration’s efforts in stopping the flow. However, recent times have seen a complex plot twist, as the Administration is finding out that it was easier to let the migrants in illegally than to deport them legally.

To remind, on March 15, Trump signed an executive order invoking the Alien Enemies Act to deport certain criminal aliens, namely members of the Venezuelan gang Tren de Aragua and Salvadorian gang MS-13. The administration argued that the presence of these violent gangs constituted a threat to the national security and public safety and constituted a “predatory incursion”, therefore covered by the Act. The Act, which dates to 1798, gives the administration the power to summarily deport such aliens, argues the administration.

Earlier, on February 20 the State Department had declared Tren de Aragua a foreign terrorist organization in compliance with a separate executive order, a declaration which still stands today. The order invoking the Act asserts that TDA is conducting “irregular warfare” throughout the country at the direction of Venezuelan government.

The administration argued 50 U.S.C. 21 section of the Act applied, which reads, in full,

“Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, as alien enemies.”

However, a defiant judiciary across various jurisdictions adopted the role of obstructing these efforts, giving rise to a tangled array of judicial orders and decisions.

Lawfare gone wild

Immediately following President Trump’s March 15 proclamation, US district court judge James Boasberg issued a temporary restraining order barring the administration from using the Alien Enemies Act to rapidly deport Tren de Aragua gang members.

Boasberg ruled that the gang members were entitled to challenge the finding that the are deportable under the Act. The temporary restraining order was initially was set to expire in two weeks but was later extended through April 12.

This order was then appealed by the administration to the Supreme Court, which ruled on April 7 that the Trump administration could resume the deportations under the Alien Enemies Act.  However, the Court indicated that these individuals are entitled to a notice of their deportation and an opportunity to challenge it.

The Supreme Court’s ruling prompted a series of lawsuits seeking to prevent further deportations under the Act. In early May, Federal district judges in Texas, New York and Colorado ruled against the administration’s use of the Act.

These judges ruled that the administration’s use of the Act was either unlawful or of questionable legality and that those challenging their deportation were likely to succeed on the merits. Then, in a plot twist, another federal district court judge, Stephanie Haynes in western Pennsylvania, ruled in favor of the administration.

After the 5th Circuit Court sidestepped an appeal of the Texas district court ruling, claiming that it lacked jurisdiction, the US Supreme Court again stepped in. This time, in a full-circle moment, the Court delivered a serious blow to the administration’s use of the Act. Whereas, in its early April ruling, the Court had allowed the resumption of the deportations, on May 19th, ruled that at least for the time being, the Act may not be used for this purpose.

Specifically, the Supreme Court ruled that the pretexts of the Alien Enemies Act must first be decided by the 5th Circuit Court. In other words, the case was to be sent back to the 5th Circuit, which oversees appeals cases coming out of Texas and is often seen as not strict constitutionalist. The Court barred the administration from carrying on with the deportations until this process plays out. In addition, the Court reiterated that the deportees are entitled to a fair hearing.

Four of the six Republican appointees–John Roberts, Amy Barrett, Brett Kavanaugh, and Neil Gorsuch, sided with the liberal justices to stop the deportations. Clarence Alito and Samuel Thomas were the sole dissenters.

The Court, both in April and early May did not deny the legality of the administration’s use of the Alien Enemies act. “The Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court,” the April order states. The May hit pause on the matter, placing the question of legality back to a lower court to opine on.

The Administration Has a Strong Legal Case for Use of the Act

The Supreme Court has not yet addressed the constitutionality of using the Alien Enemies Act to deport members of the Venezuelan prison gang. Rather, the Court consistently found that “judicial review” had been requested in the wrong court. In April, the Court indicted that attorneys for the deportees should have filed their lawsuit in Texas, where the plaintiffs were being held, instead of in Judge Boasberg’s D.C. venue.

There are multiple reasons to believe that the Administration is on a sound Constitutional footing in seeking to apply the Alien Enemies Act, while what is required for “due process” remains an open question. That said, given the Supreme Court’s allusions to the need for a “fair hearing” for deportees, mass deportations under the Act may become impractical.

As legal context, the Supreme Court in 1948 confirmed the Alien Enemies Act was a power of the Executive (the President) under Article II, Section I of the US Constitution. The court rulings and injunctions are an apparent defiance of this precedent. The framers of the constitution, argues former Virginia Attorney General Ken Cuccinelli, did not limit the power to apply exclusively to military invasions, nor to require a Congressional declaration of war.¹ Legal experts such as Joe DiGenova have likewise sounded off on what they consider to be abuse of jurisdictional power of the judges. ²

The DOJ has contended that the actions of Tren de Aragua fall squarely within the meaning of an invasion or predatory incursion: “The actions of TDA…[such as] illegal entry into and continued unlawful presence in the United States, is an ‘unwelcome intrusion’ that entails hostile acts contrary to the rights of U.S. citizens to be free from criminality and violence.” According to the DOJ, such an intrusion need not be military in nature or intended to occupy territory. ³

The American Civil Liberties Union (ACLU), which has filed many of the lawsuits against the administration’s use of the Alien Enemies Act, including at the Supreme Court, has relied on a questionable interpretation of the Act. The ACLU claims that an invasion or predatory incursion must take place by a government military or militia that is an arm of the government–that the “AEA cannot override the INA [asylum] provisions that were deliberately enacted to provide vulnerable individuals with meaningful access to protections from prosecution [sic] and torture”.⁴ Of course, asylum usually does not apply to convicted criminal alien gang members present in the United States.

Expert Reactions

Justice Alito claimed the Court had “no authority to issue any relief” to the aliens in his dissent from the Court’s May decision. Experienced lawyers and legal experts also sounded off on the decision. Stephen Miller, President Trump’s Chief of Staff for Policy is quoted as saying; “[the court] issued this order without receiving any information on this terrorist organization and the diplomacy that has been conducted. “⁵

Similarly, after the Supreme Court ruling, federal district judge James Ho issued a rare rebuke of the court’s ruling for a judge of his stature. He went as far as decrying the disproportionate amount of injunctions Trump has received compared to other presidents, stating he has “sincere concerns about how the district judge as well as the President and other officials have been treated in this case.” “I worry that the disrespect they have been shown will not inspire continued respect for the judiciary, without which we cannot long function,” Ho added. ⁶

Legal constitutional experts decry the liberal argument that illegal aliens are entitled to the same due process as citizens. Nowhere in the constitution does it explicitly state “equal protection” extends to people here illegally. Constitutional attorney John Eastman rightly states that the founders did not envision a time that would see the nation flooded with immigrants, let alone aliens, or criminal aliens–and certainly not giving those aliens rights. ⁷

Despite the lamentations of originalists, the administration’s use of the Alien Enemies Act could become impractical and come to an end with the May Supreme Court ruling because of “due process” impediments. The Trump administration will have to search for ways around the ruling or for better ways to deport, should the policy be slowed to an undesirable rate.

One potentially available option may suspending Habeas Corpus, a presidential power in Article II that would entail stripping the right of due process for a class of people within the United States on declaration of emergency. President Abraham Lincoln is famous for suspending habeas corpus during the Civil War, with significant blowback from his opponents. The action could serve, say legal scholars like Eastman, as a Constitutional last resort for the administration to facilitate deportations of illegal aliens.

As of now, the Trump administration claims to be ramping up all deportations, opening the aperture to deport up to 3,000 or more illegal aliens per day, not just violent criminals. The administration intends to use all available measures to circumnavigate the various judicial obstacles.

Apparently they felt a need to sympathize with the far-left organization with no reverence for the constitution whatsoever bruh.

1. Virginia Allen, “Trump Bashes Supreme Court following Order Further Blocking Use of Alien Enemies Act.” The Daily Signal (May 16,2025). https://www.dailysignal.com/2025/05/16/trump-bashes-supreme-court-following-order-further-blocking-use-of-alien-enemies-act-to-deport-illegal-gang-members/ ↩︎
2. “Greg Kelly Reports”, Newsmax show clip, April 25, 2025
   https://www.youtube.com/watch?v=GX01Lh2IU68 ↩︎
3. Joe Chatham, “DOJ Fights Back in Alien Enemies Act Deportation Case.” Federation for American Immigration Reform (March 24, 2025). https://www.fairus.org/legislation/executive/doj-fights-back-alien-enemies-act-deportation-case ↩︎
4. ibid ↩︎
5. Joe Chatham, “Supreme Court Temporarily Blocks Deportations under the Alien Enemies Act.” Federation for American Immigration Reform (April 21, 2025). https://www.fairus.org/legislation/executive/supreme-court-blocks-deportations-alien-enemies-act ↩︎
6. Natalia Mittelstadt, “5th Circuit Court of Appeals Judge Criticizes SCOTUS for Blocking Trump Deportations under AEA.” Just the News (May 21, 2025). https://justthenews.com/government/courts-law/5th-us-circuit-court-appeals-judge-criticizes-scotus-blocking-trump?utm_source=breaking&utm_medium=email&utm_campaign=newsletter ↩︎
7. “Legal expert Dr. John Eastman analyzes Supreme Court decisions impacting President Trump’s immigration policies.” John Solomon podcast episode on Just the News. https://justthenews.com/podcasts/john-solomon-reports/legal-expert-dr-john-eastman-analyzes-supreme-court-decisions ↩︎