President Trump has been trying to remove dangerous Venezuelan gang members from American soil, and activist courts have been throwing up roadblocks at every turn.

The legal establishment keeps finding new ways to delay the inevitable.

And now the fight over a rarely invoked 18th-century law just took a strange twist that leaves everything exactly where it was before.

The 5th Circuit Sidesteps the Big Question

The Fifth US Circuit Court of Appeals recently dismissed as moot a challenge to President Donald Trump’s use of the Alien Enemies Act to deport alleged Tren de Aragua members, leaving the legality of his invocation of the 18th-century law unresolved.

The New Orleans-based court said the case became moot after all three Venezuelan plaintiffs, whom the administration alleged were members of Tren de Aragua, had already been removed from the United States under other immigration authorities. In other words, the government got the job done anyway, and the court used that fact to walk away without deciding anything.

Chief US Circuit Judge Jennifer Walker Elrod, a George W Bush appointee writing for the en banc court, said the appeal could no longer provide any meaningful relief. “The government has removed all three named petitioners under the Immigration and Nationality Act,” Elrod stated. “So enjoining removal under the AEA would not prevent their removal . . . the appeal has thus become moot.”

While the Alien Enemies Act dates back hundreds of years, prior to Trump, it was most recently invoked 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’s argument is straightforward: Tren de Aragua is not some neighborhood street gang. Trump’s proclamation states that “over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA,” and that “the result is a hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States, and which poses a substantial danger to the United States.”

The case began after Trump’s March 14, 2025, proclamation invoked the Alien Enemies Act against Venezuelan citizens 14 or older who are members of Tren de Aragua, a designated foreign terrorist organization, and are not naturalized citizens or lawful permanent residents.

Two Judges Say Trump Is Right, Whether Anyone Wants to Hear It or Not

Even though the court declined to rule on the merits, two judges signaled their belief that the president’s use of the law was appropriate in their concurring opinions.

Judge James Ho wrote: “I agree that this case is moot. But I also agree with the United States that we should address the merits questions directed to us by the Supreme Court — and affirm the President’s actions under the Alien Enemies Act and the Due Process Clause.”

And Ho did not stop there. “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, a Trump appointee, added. “And if courts must defer when the President treats illegal immigration as an invasion, see id., then a fortiori we must defer when it comes to the narrower question of an invasion by Tren de Aragua.”

That is a serious constitutional argument. Presidents have historically held broad authority over national security determinations, and the idea that federal judges are better positioned than the commander in chief to assess whether a foreign criminal organization constitutes an invasion threat is not obviously correct.

Two Trump-appointed judges, Andrew Oldham and James Ho, went on to rule the president’s use of the Alien Enemies Act lawful, even as their colleagues dodged the question entirely.

Critics Push Back, But the Underlying Fight Heads to the Supreme Court

Not everyone on the legal commentariat agreed with Ho’s framing. Ilya Somin, a George Mason law professor and scholar at the libertarian Cato Institute, disagreed strongly with Ho’s rationale. “If the president could create an ‘invasion’ simply by claiming that it exists, it would convert dangerous emergency powers that can only be used in extreme circumstances into blank checks the president can invoke any time he wants,” he wrote.

That is a real concern worth taking seriously. But the flip side is equally real: if unelected federal judges can override a president’s national security determination about a designated foreign terrorist organization running drugs, violence, and chaos across American communities, the practical consequences fall on ordinary Americans, not on law professors in northern Virginia.

The Alien Enemies Act has only previously been used during World Wars I and II and the War of 1812. Critics argue that invoking it against a gang rather than a foreign government stretches the law beyond its original meaning. The administration argues that Tren de Aragua’s deep ties to the Venezuelan government make the distinction far less clear than the critics claim.

The Supreme Court blocked the government from immediately removing the alleged Tren de Aragua gang members without offering them any opportunity to challenge the move. Once the case returned to the appeals court, a three-judge panel ruled against Trump, but the full 17-member court, considered the most conservative in the country, agreed to rehear the case at the administration’s request.

While the plaintiffs in this case were not deported under the Alien Enemies Act, in the hours after Trump signed the March order, more than 100 Venezuelan men were deported to a notorious Salvadoran megaprison. The men spent months imprisoned in CECOT, a facility known by its acronym in Spanish, as attorneys challenged their removal from the US. Those men were later released from CECOT and returned to Venezuela following a negotiated prisoner swap.

But the underlying legal question — whether a president can invoke a 228-year-old wartime statute against a foreign gang conducting what the administration calls an invasion — remains wide open. A federal appeals court’s ruling likely sets up a legal clash at the US Supreme Court. That is where this has been headed all along.

The administration’s ability to remove dangerous illegal aliens does not depend entirely on the Alien Enemies Act. Trump’s team has demonstrated it can use existing immigration statutes to get the job done, as the removal of all three plaintiffs in this very case proves. But the president’s authority to invoke emergency wartime powers against a foreign terrorist organization conducting what his administration describes as an active invasion is a question with implications far beyond this one case.

And the courts have been slow-walking the answer long enough. The American people voted in 2024 for exactly this kind of aggressive, unapologetic immigration enforcement. Every month of litigation is another month that Tren de Aragua operates freely inside US borders while lawyers argue about the precise definition of “predatory incursion” in a law written before the Louisiana Purchase.

The Supreme Court will eventually have to give a straight answer. When it does, the question is whether it will respect the president’s constitutional authority over national security, or hand open-borders advocates yet another procedural lifeline to delay the enforcement of American law.

Sources: Fox News, Courthouse News Service, NBC News, The Hill, Tampa Free Press, Reason/Volokh Conspiracy, Al Jazeera, NPR