Prisoners look out of their cell as Department of Homeland Security Secretary Kristi Noem tours the Terrorist Confinement Center, or CECOT, on March 26, 2025 in Tecoluca, El Salvador. The Trump administration deported 238 alleged members of the Venezuelan criminal organizations 'Tren De Aragua' and Mara Salvatrucha.  (Photo by Alex Brandon-Pool/Getty Images)

WASHINGTON — A federal appeals court late Tuesday blocked the Trump administration’s use of the Alien Enemies Act of 1798, finding there is no “invasion or predatory incursion” by a foreign government and therefore President Donald Trump cannot invoke the wartime law to quickly expel Venezuelan nationals without due process. 

The 2-1 ruling rejected the administration’s argument that the Venezuelan migrants were part of an “invasion” to the United States and represents a setback for the president, who invoked the wartime law in March as a pillar of his mass deportation campaign to deport people without permanent legal status. 

The decision out of the conservative-leaning 5th Circuit Court of Appeals that covers Louisiana, Mississippi and Texas is likely to head back to the U.S. Supreme Court.

Appeals Court Judges Leslie Harburd Southwick, nominated by former President George W. Bush, and Irma Carrillo Ramirez, nominated by former President Joe Biden, made up the majority in the case. Judge Andrew Oldham, nominated by Trump, dissented.

“A country’s encouraging its residents and citizens to enter this country illegally is not the modern-day equivalent of sending an armed, organized force to occupy, to disrupt, or to otherwise harm the United States,” according to the majority in the175-page opinion. “There is no finding that this mass immigration was an armed, organized force or forces.”

The lead attorney on the case, Lee Gelernt of the American Civil Liberties Union, praised the ruling. 

“This critical decision makes clear that the president cannot invoke whatever powers he wants,” Gelernt said in a statement. “This is a huge victory for the rule of law.”

Oldham dissented with the majority, arguing that a president’s authority to make the “declaration of an invasion, insurrection, or incursion is Conclusive. Final.” 

“And completely beyond the second-guessing powers of unelected federal judges,” Oldham wrote in his dissent.

A U.S. Department of Homeland Security spokesperson said Tuesday’s decision is not final. 

“President Trump and Secretary (Kristi) Noem will not allow criminal gangs to terrorize American citizens,” the spokesperson said in a statement. “Unelected judges are undermining the will of the American people. This ruling will not be the final say on this matter. We are confident in our position, and we have the law, the facts, and common sense on our side.”

Trump’s use of Alien Enemies Act

In March, President Donald Trump applied the Alien Enemies Act to Venezuelan nationals ages 14 and older who were accused of belonging to the Tren de Aragua gang. 

He used the proclamation to send more than 200 Venezuelan men to a notorious prison in El Salvador, where they remained for months before being released to the Venezuelan government in a prison exchange this summer.

Trump also designated the Venezuelan gang as a foreign terrorist group earlier this year. 

Prior to March, the Alien Enemies Act had been invoked only three times – in the War of 1812, World War I and World War II. The Trump administration applied the law to quickly expel Venezuelan nationals and argued the proclamation allowed for the skirting of due process rights, which judges have rejected. 

In April the Supreme Court temporarily allowed the Trump administration to use the wartime law but said those subject to the proclamation needed to have adequate notice to challenge their removal. 

In May, a separate Alien Enemies case was sent to the high court, which instructed the 5th Circuit to determine if the Trump administration’s declaration of the wartime law was legal. Tuesday’s decision stemmed from that case.

The decision only applies to the use of the Alien Enemies Act. The Trump administration can continue to remove people who are not U.S. citizens deemed as foreign threats.