The Fifth Circuit Court of Appeals dismissed a legal challenge to President Trump’s use of a rarely-invoked 18th-century deportation law Thursday — but the ruling leaves the biggest question unanswered: can Trump use the Alien Enemies Act to remove suspected gang members?
The New Orleans-based court tossed the case as moot after all three Venezuelan plaintiffs — whom the administration identified as alleged members of the violent Tren de Aragua gang — had already been deported under separate immigration authorities.
That means the legal fight over Trump’s unprecedented use of the Alien Enemies Act continues, with the Supreme Court likely to settle the question in a future case.
“The Fifth Circuit’s en banc decision represents one step forward, one step sideways for the Trump Administration.”
The Alien Enemies Act dates back hundreds of years. Before Trump, it was last used by President Harry Truman in 1946. The law allows the president — under specified wartime or invasion circumstances involving a foreign nation or government — to detain and remove certain non-naturalized individuals of that hostile power.
The Trump administration has argued that Tren de Aragua’s gang activity amounts to an “invasion or predatory incursion” under the law. The White House wants to use the authority as part of its broader immigration agenda, including efforts to speed the removal of suspected gang members.
The Supreme Court previously blocked the administration from removing the detainees under the Alien Enemies Act while the case proceeded, but stopped short of deciding whether Trump had lawfully invoked the statute. The justices sent the dispute back to the Fifth Circuit — which has now punted on the merits entirely.
Advancing American Freedom senior legal fellow Bryce Poole told Fox News Digital the ruling is “one step forward, one step sideways” for Trump.
“It’s a step forward because it vacates the prior ruling that said Trump’s invocation was unlawful, leaving the President’s AEA powers intact,” Poole explained. “It’s a step sideways because the court dodged the merits, so the AEA’s legality remains a live question the Supreme Court will likely decide — probably in a different case.”
Advancing American Freedom is a conservative public policy advocacy organization founded by former Vice President Mike Pence.
Even though the court declined to rule on the merits, two judges signaled their belief that Trump’s use of the law was appropriate in concurring opinions.
Judge James Ho — a Trump appointee — wrote that he agreed the case is moot, but also agreed with the United States that the court should affirm the President’s actions under the Alien Enemies Act.
“As I’ve also noted, judges are supposed to defer to a President’s declaration of a state of invasion — including the ones issued on January 20, 2025,” Ho wrote. “And if courts must defer when the President treats illegal immigration as an invasion, then a fortiori we must defer when it comes to the narrower question of an invasion by Tren de Aragua.”
Judge Andrew Oldham, another Trump appointee, also agreed that the president’s invocation of the Alien Enemies Act was legally sound.
Ilya Somin, a George Mason law professor, disagreed strongly with Ho’s rationale. He argued that if the president could create an “invasion” simply by claiming one exists, it would convert dangerous emergency powers into blank checks the president can invoke any time.
With all 17 active Fifth Circuit judges participating, the court refused a request from the plaintiffs’ lawyers to substitute in new plaintiffs for the men the Trump administration deported.
The case now heads back toward the Supreme Court — likely through a different lawsuit with a certified class, where mootness won’t derail the merits question. Trump’s invocation of the Alien Enemies Act remains legally unresolved, with a final decision potentially years away.
