President Trump can’t tap the Alien Enemies Act to detain and deport Venezuelan citizens under the present circumstances, a federal court announced today. In a narrow ruling that the Justice Department is certain to appeal, Judge Fernando Rodríguez concluded that Trump hasn’t shown that that Tren de Aragua has launched an invasion or predatory incursion against the United States, requirements for invoking the 18th century wartime law.
Judge Rodríguez, who was nominated to his position by President Trump, took a careful middle ground between the administration, which claims courts are powerless to second-guess the president’s use of the Alien Enemies Act, and migrants who say the administration is violating the Due Process Clause of the U.S. Constitution. In the Judge Rodríguez’s view, the president must show that the United States is suffering from a threatened or attempted invasion or predatory incursion. Accepting the Trump administration’s claim that the government of Venezuelan President Nicolás Maduro controls Tren de Aragua’s activities, Judge Rodríguez nonetheless concluded that Trump’s proclamation invoking the Alien Enemies Act, signed March 15, 2025, fails to show that Tren de Aragua is engaged in either.
As used in the Alien Enemies Act, the term “invasion” means “entry into the nation’s territory by a military force or an organized, armed force, with the purpose of conquering or obtaining control over territory,” Judge Rodríguez explained. The phrase “predatory incursion” involves “a military force or an organized, armed force entering a territory to destroy property, plunder, and harm individuals, with a subsequent retreat from that territory,” the judge added.
Neither condition currently exists. At most, Tren de Aragua members can be said to have committed crimes in the United States, some of which have harmed people. But there is nothing in the presidential proclamation suggesting that they are trying to control territory or have orchestrated an organized armed attack against the United States.
Importantly, the court did not second-guess the Trump administration’s factual assertions. On the contrary, Judge Rodríguez credited every claim made in the president’s proclamation even though academics and specialists on Venezuela say that the Maduro government does not direct Tren de Aragua. In effect, the judge is allowing Trump’s team to create whatever reality they like and only measuring whether that version of reality constitutes an invasion or predatory incursion. This analysis could set up Trump officials to issue a more detailed presidential proclamation that meets these definitions even if unsupported by anything happening on the ground.
Alternatively, the Trump administration can appeal today’s decision to the U.S. Court of Appeals for the Fifth Circuit, the most rightwing federal appellate court in the country. If it does, as I expect, the Justice Department is likely to dig into a claim that Texas made in its legal fight with the Biden administration over the state’s effort to install a buoy in the Río Grande River. Though most of the Fifth Circuit judges avoided discussing the state’s position that it was entitled to protect itself from an ongoing migrant invasion, Judge James Ho wrote that he would have credited the state’s view equally as the president’s view. If either a governor or the president finds that an invasion exists, the courts should not intervene, Judge Ho explained.
Judge Rodríguez permanently blocked the Trump administration from using the Alien Enemies Act to detain or deport Venezuelan citizens who are at least fourteen years old. The decision applies only in a region of Texas stretching south from Houston to the Río Grande Valley. I expect the Justice Department to ask the Fifth Circuit to stay Judge Rodríguez’s order. Separately, the U.S. Court of Appeals for the Tenth Circuit, based in Denver, on Tuesday refused to stay a temporarily hold on the Alien Enemies Act in Colorado.
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