Trump’s fight over rarely used 18th-century deportation law lives on in latest court clash

2026-08-14T17:21:46-04:00 / Fox News

All three plaintiffs had already been removed from the US, rendering the dispute moot before the court could rule on merits

By Robert Schmad Fox News

Published August 14, 2026 5:21pm EDT

DHS lawyer says public needs to know which judges are in ‘open defiance’ of SCOTUS on immigration

DHS Chief Counsel James Percival said a group of federal district judges—not the judiciary as a whole—are repeatedly blocking deportations and Temporary Protected Status rollbacks despite SCOTUS rulings, calling it “naked political activism.”

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The Fifth U.S. Circuit Court of Appeals on Thursday 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.

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 has argued that Tren de Aragua’s gang activity amounts to an “invasion or predatory incursion” under the law and has sought to use the authority as part of its broader immigration agenda, including efforts to speed the removal of suspected gang members.

President Donald Trump speaks during an event in the Oval Office of the White House on Aug. 6, 2026, in Washington, D.C.(Getty Images)

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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, sending the dispute back to the Fifth Circuit.

Advancing American Freedom senior legal fellow Bryce Poole described the ruling as a mixed result for the Trump administration.

“The Fifth Circuit’s en banc decision in W.M.M. v. Trump represents one step forward, one step sideways for the Trump Administration,” Advancing American Freedom senior legal fellow Bryce Poole told Fox News Digital. “Last year, in A.A.R.P. v. Trump, the Supreme Court blocked the removals but declined to decide whether President Trump’s invocation of the Alien Enemies Act was lawful, sending that question back to the Fifth Circuit.”

Advancing American Freedom is a conservative public policy advocacy organization founded by former Vice President Mike Pence.

“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 like J.A.V. v. Trump, which has a certified class, so mootness won’t apply.”

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James C. Ho, nominee to be a judge for the 5th U.S. Circuit Court of Appeals, testifies during his Senate Judiciary Committee confirmation hearing in Dirksen Building on November 15, 2017.(Tom Williams/CQ Roll Call)

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.

“I agree that this case is moot,” Judge James Ho wrote. “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.”

“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.”

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’s contrary to the text of the AEA (which limits its use to situations where these circumstances actually exist) and to the text and original meaning of the Constitution.”

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Judge Andrew Oldham, another Trump appointee, also agreed that the president’s invocation of the Alien Enemies Act was legally sound.

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 who the Trump administration deported.

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Trump’s invocation of the Alien Enemies Act remains legally unresolved following the dismissal, with the court’s actions likely delaying a possible final decision at the Supreme Court.