Left: President Donald Trump walks from Marine One after arriving on the South Lawn of the White House, Tuesday, July 15, 2025, in Washington. (AP Photo/Alex Brandon, File). Right: Homeland Security Secretary Kristi Noem speaks during a roundtable at “Alligator Alcatraz,” a new migrant detention facility at Dade-Collier Training and Transition facility, Tuesday, July 1, 2025, in Ochopee, Fla. (AP Photo/Evan Vucci).
Two dozen red states are backing the DOJ and Donald Trump on the president”s Alien Enemies Act proclamation to deport, in a sweeping manner, alleged members of the Venezuelan Tren de Aragua (TdA) gang, as a major rehearing of a loss for the administration looms in the new year.
The Trump administration has maintained that the 5th U.S. Circuit Court of Appeals erroneously “invalidated” Trump’s proclamation in March which designated TdA as a “Foreign Terrorist Organization” numbering “thousands of members” who were “conducting irregular warfare and undertaking hostile actions against the United States” and with the blessing of Venezuelan President Nicolas Maduro.
Now attorneys general for the states of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, West Virginia, and Wyoming are weighing in to “support robust actions against gangs like TdA that are wreaking havoc within our borders.”
“Our Nation’s interests are best served when the Commander in Chief is able to rely upon intelligence and the judgment of national-security professionals in deciding how to exercise his constitutional and statutory authority in meeting modern threats, not when courts improperly intrude into the President’s discretionary national-security decisions,” the filing said.
“Indeed, exactly when an ‘invasion’ or ‘predatory incursion’ exists,” the AGs went on, “is not a decision for judges to make, but rather it is a ‘political determination for [the] other branches of government.'”
It was clear during June oral arguments that there was some uneasiness among the majority of a three-judge panel. By September, the panel, led by U.S. Circuit Judge Leslie Southwick, concluded that Trump’s invocation of the 1798 wartime law failed for the reasons that there was “no invasion or predatory incursion” afoot under the meaning of the statute, that the U.S. is neither at war with TdA nor Venezuela, and that the president’s admittedly “broad discretion” was reviewable by the courts.
Southwick, a George W. Bush appointee, was joined by U.S. Circuit Judge Irma Carrillo Ramirez, a Joe Biden appointee, in holding that the Trump administration’s reliance on the AEA statute was blocked and that the government would have to rely instead on other statutory authority to remove alleged “foreign terrorists” from the country.
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But U.S. Circuit Judge Andrew Oldham, a Trump appointee, clearly warmed to the administration’s arguments in favor of Trump’s authority and ended up penning the lone dissent — one which the government is embracing in its request that the whole 5th Circuit second-guess the panel’s ruling. Oldham accused the majority of essentially making themselves president, treating Trump like some “run-of-the-mill plaintiff,” and holding him to a different standard than any president ever.
“For 227 years, every President of every political party has enjoyed the same broad powers to repel threats to our Nation under the Alien Enemies Act (‘AEA’). And from the dawn of our Nation until President Trump took office a second time, courts have never second-guessed the President’s invocation of that Act. Not once,” he began, stating that the U.S. Supreme Court has “time and time again” said the president’s “declaration of an invasion, insurrection, or incursion is conclusive.”
“For President Trump, however, the rules are different. Today the majority holds that President Trump is just an ordinary civil litigant. His declaration of a predatory incursion is not conclusive. Far from it. Rather, President Trump must plead sufficient facts—as if he were some run-of-the-mill plaintiff in a breach-of-contract case—to convince a federal judge that he is entitled to relief,” Oldham went on. “That contravenes over 200 years of legal precedent. And it transmogrifies the least-dangerous branch into robed crusaders who get to playact as multitudinous Commanders in Chief. I respectfully but emphatically dissent.”
The DOJ consequently sought review by the full — en banc — 5th Circuit, and the docket shows that the en banc oral argument has been set for Jan. 22.
Like the DOJ, the red state amici curiae or friends of the court are leaning heavily on Oldham’s dissent to make their case that the courts have no say when the president finds an “invasion or a predatory incursion” actually “exists.”
“[J]udicial review of the President’s determinations is foreclosed for at least two reasons. First, as ably explained by Judge Oldham in his dissent from the panel majority’s opinion, some statutes ‘preclude judicial review,’ and the AEA is ‘such a statute.’ This position finds support in nearly ‘200 years of legal precedent,'” the AGs said. “Second, to the extent that this Court chooses to analyze the case under the framework of the political question doctrine, it also forecloses review of the President’s determination.”
The 5th Circuit filing in the ongoing AEA fight comes not long after the U.S. Circuit Court of Appeals for the District of Columbia shut down a federal judge’s contempt inquiry into the government’s mid-March AEA deportations. Chief U.S. District Judge James Boasberg had ordered up witness testimony for this week to help him determine whether DHS Secretary Kristi Noem should be referred for prosecution, in connection with a potential “willful violation” of a court order blocking deportations.
The D.C. Circuit’s stay means that inquiry will be stalled into the new year.
