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President Donald Trump addresses a joint session of Congress on Capitol Hill in Washington, Tuesday, March 4, 2025 (AP Photo/Alex Brandon).
A federal court of appeals has upheld a temporary restraining that bars the government from summarily deporting immigrants without due process by citing an obscure wartime law.
In a per curiam order, the U.S. Court of Appeals for the D.C. Circuit tersely rejected the Trump administration’s bid for an emergency stay of the temporary restraining order issued on March 15, by D.C. District Court Chief Judge James E. Boasberg, a jurist who got his start under George W. Bush and who was later promoted by Barack Obama.
Each of the three judges on the three-judge panel, however, wrote separately to explain their votes. Circuit Judges Patricia Millett, an another Obama appointee, and Karen L. Henderson, a George H.W. Bush appointee, wrote concurrences. Circuit Judge Justin R. Walker, who was appointed by President Donald Trump, penned a dissent.
In the case before the court, the Trump administration claimed something not entirely unlike plenary authority to quickly deport immigrants using the Alien Enemies Act (AEA) of 1789. The law, which has not been used since World War II, has hitherto been understood to apply only during an actual war with another country. Its use by the Trump administration to target suspected foreign gang members poses a matter of first impression for the judiciary at large.
The law in question reads, in relevant part:
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, shall be liable to be apprehended, restrained, secured, and removed as alien enemies.
Henderson, for her part, believes in the historical understanding of how the law works through its conditional and operative clauses.
“Thus, the AEA vests in the President near-blanket authority to detain and deport any noncitizen whose affiliation traces to the belligerent state,” the judge wrote. “A central limit to this power is the Act’s conditional clause—that the United States be at war or under invasion or predatory incursion.”
To hear the Trump administration tell it, however, the court’s authority to resolve AEA-related issues are beyond the scope of judicial review because they are so political in nature.
Henderson sharply rejected that claim – accusing the U.S. Department of Justice of misreading the U.S. Supreme Court precedent cited to make that un-reviewability argument.
“In no uncertain terms, the Court said the AEA ‘preclude[s] judicial review . . . [b]arring questions of interpretation and constitutionality,”” Henderson noted. “Questions of interpretation and constitutionality—the heartland of the judicial ken—are subject to judicial review.”
The judge also offered a new analysis of her own – in light of government claims that the word “invasion” in the statute applies to the current state of the U.S. immigration system because there are large numbers of “illegal” immigrants. This argument was also rejected.
“[T]he invasion must be ‘against the territory of the United States by any foreign nation or government,’” the judge observed. “The requirement that the ‘invasion’ be conducted by a nation-state and against the United States’ ‘territory’ supports that the Congress was using ‘invasion’ in a military sense of the term.”
The concurrence elaborates, at length:
This should come as no surprise. The term “invasion” was well known to the Fifth Congress and the American public circa 1798. The phrase echoes throughout the Constitution ratified by the people just nine years before. And in every instance, it is used in a military sense. For example, the Guarantee Clause provides that “[t]he United States shall . . . protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” The clause is a federal guarantee to the states against attack from without (invasion) or within (insurrection).
In one small salve for the government, Henderson cited common law to suggest Boasberg might have to limit his temporary restraining order so that it does not apply to the president himself. Still, she said, the broader restraining order should stand for at least as long as the lower court fully briefs the issues.
“At this early stage, the government has yet to show a likelihood of success on the merits,” Henderson concluded. “The equities favor the plaintiffs.”
In her own concurrence, Millett also said the lower court was equipped to deal with the case on the merits at this stage – and chided the government for what appeared intentional efforts to remove the case from the court’s jurisdiction by its actions.
“The district court has been handling this matter with great expedition and circumspection, and its orders do nothing more than freeze the status quo until weighty and unprecedented legal issues can be addressed through a soon-forthcoming preliminary injunction proceeding,” Millett wrote. “There is neither jurisdiction nor reason for this court to interfere at this very preliminary stage or to allow the government to singlehandedly moot the Plaintiffs’ claims by immediately removing them beyond the reach of their lawyers or the court.”
Millett used especially strong language to take issue with the Trump administration’s interpretation of the AEA.
“[T]he government maintains that whether there has been an ‘invasion or predatory incursion’ of the United States and whether [the Venezuelan gang Tren de Agua] is a ‘foreign nation or government’ are committed to the President’s discretion,” the judge writes. “Not likely.”
Then judge then took a larger ax to the executive branch.
‘[T]he government is mistaken about the extent of unilateral Executive authority under the Constitution,” she goes on. “An assertion of exclusive Executive authority is ‘the least favorable of possible constitutional postures’ and it runs aground here on the express constitutional assignment of relevant authority to Congress.”
The government’s position in the AEA case also implicates fundamental constitutional rights; Millett says those issues have long since been decided and the government is wrong again here.
“Over one-hundred-and-fifty years ago, the Supreme Court addressed whether civilian courts could be closed just because the Executive declared an emergency,” the judge noted. “The Court said no.”
As for the basic claim advanced by the Trump administration, Millett rubbished the government for insisting the AEA could be used to deport people while at the same time suggesting anyone aggrieved by such a deportation could file a petition for a writ of habeas corpus.
“The government’s removal scheme denies Plaintiffs even a gossamer thread of due process, even though the government acknowledges their right to judicial review of their removability,” Millett concluded. “The district court’s temporary restraining orders have appropriately frozen the status quo until an imminent motion for preliminary injunction is filed. The district court acted well within its discretion in doing so. We lack jurisdiction to review the government’s motion to stay those orders, and the government’s jurisdictional objections to the district court’s actions do not raise a substantial question at this stage.”
