The Fifth Circuit — Majority and Dissent — Gets the Alien Enemies Act Wrong

George Fishman

By George Fishman on September 29, 2025

Summary

Earlier this month, the Fifth Circuit Court of Appeals in W.M.M. v. Trump granted a preliminary injunction to prevent the removal under the Alien Enemies Act of 1798 of aliens determined by DHS to be members of Tren de Aragua (TdA), a brutal Venezuelan cartel involved in drug smuggling and other criminal activity that has been designated a foreign terrorist organization. On March 15, President Trump had issued a proclamation declaring all Venezuelan members of TdA, 14 and older and neither naturalized U.S. citizens nor lawful permanent residents, as liable to be apprehended, restrained, secured, and removed as alien enemies under the AEA.
The AEA provides that “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 … all natives … of the hostile nation or government [14 and older and not naturalized U.S. citizens] shall be liable to be apprehended, restrained, secured, and removed as alien enemies.” President Trump’s proclamation declared that TdA, as a proxy for and indeed part of the Venezuelan government, was conducting an invasion and predatory incursion of the United States.
Two of the three judges on the panel, Judges Southwick and Ramirez, supported the preliminary injunction on the basis that the aliens were likely to succeed in their claim that TdA is not engaged in an “invasion” or “predatory incursion”, and thus that President Trump has no basis upon which to utilize the AEA’s powers. Judge Oldham dissented.
As to predatory incursions, Judge Southwick explained that “[t]he parties’ primary interpretive disagreement” was over whether the term (as understood in 1798) “demanded some level of military action”. The aliens argued that it did, the Trump administration that it did not. Southwick, as he should have, looked at dictionary definitions from the era of our Founding Fathers and how the term was commonly used at the time. But he gets the meaning of predatory incursion wrong, concluding that it described “armed forces of some size and cohesion, engaged in something less than an invasion”.
As the Trump administration argued, while a predatory incursion (as understood at the time of the AEA’s enactment) could include military action, it did not require military action. As the Supreme Court has recognized, words can have more than one common or ordinary meaning. Consider that President George Washington, in his annual message to Congress in 1796, referred to “predatory incursions of those unruly individuals [Indians], who cannot be restrained by their Tribes”. That sounds not like the actions of a military force or an organized armed force, but more like a drunken rampage by a mob. Consider that during the War of 1812, the governor of Massachusetts wrote to the secretary of war that Massachusetts towns “had no apprehensions of invasion by an authorized British force, but that there were many lawless people on the borders from whom they were in danger of predatory incursions”. Again, that does not sound like the actions of a military force or an organized armed force. There is nothing to indicate that President Washington or the governor were using “predatory incursion” in a manner they considered outside its ordinary meaning.
Judge Oldham, on the other hand, gets predatory incursion right in concluding that the term encompasses TdA’s actions as described by President Trump and therefore warranted Trump’s utilization of the AEA against TdA. But Oldham gets the rationale wrong. For he did not conclude that TdA’s actions properly constitute a predatory incursion based on the common/ordinary meaning of the term. Rather, he concluded that under the AEA a predatory incursion is whatever a president says it is, and that federal courts are obligated to accept as conclusive a president’s pronouncement, no matter how utterly absurd. Oldham claims not to be “arguing that the President has conclusive … power to proclaim that AEA invasions include denying that baseball is our national pastime or double parking at the grocery store”. But if, as Oldham concluded, the president’s declaration of an incursion is “conclusive”, then on what possible basis could a court intervene to stop a president from making such a conclusive conclusion? I see none.
As D.C. Circuit Court Judge Karen Lecraft Henderson explained, while “the AEA vests in the President near-blanket authority to detain and deport any noncitizen whose affiliation traces to the belligerent state”, “[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”. Those are statutory terms, and it is the job of federal courts to determine what they mean and to determine whether the facts set forth by the president, taken as true, are encompassed by those meanings.

Introduction

On September 2, the Fifth Circuit Court of Appeals in W.M.M. v. Trump granted a preliminary injunction preventing the removal pursuant to the Alien Enemies Act (AEA) of the petitioners, who sued on their own behalf and on behalf of all other aliens in Department of Homeland Security (DHS) custody in the Northern District of Texas who are or will be subject to President Donald Trump’s March 15 proclamation “Invocation of the Alien Enemies Act Regarding the Invasion of the United States by Tren De Aragua”. The proclamation provides that “all Venezuelan citizens 14 years of age or older who are members of [the Venezuelan criminal cartel Tren de Aragua, designated by the Secretary of State as a foreign terrorist organization] TdA, are within the United States, and are not actually naturalized or lawful permanent residents … are liable to be apprehended, restrained, secured, and removed as Alien Enemies”.

Judge Leslie Southwick, nominated by President George W. Bush, supported a preliminary injunction. He concluded that the petitioners were likely to succeed on the merits of their claim that TdA has not carried out an invasion or predatory incursion against U.S. territory, and that therefore President Trump has no basis upon which to utilize the AEA’s powers. The deciding second vote for an injunction came from Judge Irma Carrillo Ramirez, nominated by President Joseph Biden, who agreed that the proclamation did “not identify an invasion or predatory incursion, threatened, or otherwise”. Judge Andrew Oldham, nominated by President Trump, dissented. Judges Southwick and Oldham both agreed that DHS had given the petitioners constitutionally adequate notice of their removals, while Judge Ramirez disagreed. The court sent the case back to the district court for “further proceedings consistent with” its ruling.

The Alien Enemies Act

What is the Alien Enemies Act? Passed by Congress and signed into law in 1798 in reaction to a feared invasion by France, the AEA authorizes the summary detention and removal of nationals of enemy nations. Section 21 of Title 50 of the U.S. Code provides that:

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. [Emphasis added.]

The AEA grants an extraordinary degree of discretion to the president. Section 21 further provides that:

The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety. [Emphasis added.]

Presidents have utilized the AEA during the War of 1812 and during World Wars I and II. The Supreme Court has emphatically affirmed its constitutionality. In 1948, the Court concluded in Ludecke v. Watkins that under the Constitution’s war power, our participation in World War II “validly supports the power given to the President by the [AEA] in relation to alien enemies. … The [AEA] is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights.” In 1950, the Court noted in Johnson v. Eisentrager that:

It is certain that in the white light which beat about the subject in 1798, if there had been the slightest question in the minds of the authors of the Constitution or their contemporaries concerning the constitutionality of the [AEA], it would have appeared. None did.
The courts, in an unbroken line of cases ... have asserted or assumed the validity of the [AEA] and based numerous decisions upon the assumption ... . The judicial view has been without dissent.

What is the AEA’s great advantage to the federal government in time of conflict? As I explained in the Washington Times, “The statutory procedures and rights normally afforded to aliens [under the Immigration and Nationality Act], which would make the expeditious removal of large numbers of enemy aliens impossible, do not apply to enemy aliens subject to the AEA.” As Supreme Court Justice Hugo Black explained in his dissent in Ludecke, “there are other statutes which give broad powers to deport aliens”, but under those statutes “the executive would not have arbitrary power to send them away with or without reasons”.

As § 21 provides, the president can access the AEA’s powers during a declared war or if “any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government”. President Trump’s proclamation stated that:

I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. TdA is undertaking hostile actions and conducting irregular warfare against the territory of the United States both directly and at the direction, clandestine or otherwise, of the Maduro regime in Venezuela.
Over the years, Venezuelan national and local authorities have ceded ever-greater control over their territories to transnational criminal organizations, including TdA. 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. … TdA has invaded the United States and continues to invade, attempt to invade, and threaten to invade the country; perpetrated irregular warfare within the country; and used drug trafficking as a weapon against our citizens.

The Trump administration additionally argued in its Defendants’ Motion to Vacate Temporary Restraining Order (Motion to Vacate) in J.G.G. v. Trump, another case involving the proclamation in the U.S. District Court for the District of Columbia, that “the illegal entry into the United States by TdA members and affiliates for purposes of engaging in criminal acts hostile to the interests of the United States constitutes an ‘invasion’ or ‘predatory incursion’”.

The AEA does not define the terms “invasion” or “predatory incursion”, and as all previous uses of the AEA were in the context of declared wars, federal courts are now having to grapple for the first time with the meanings of these terms. In this report, I will focus on “predatory incursion”.

Tren de Aragua

As an introductory matter, what is TdA and what havoc has it caused in the United States? President Trump’s proclamation declared that TdA is “commit[ing] brutal crimes, including murders, kidnappings, extortions, and human, drug, and weapons trafficking”. Judge Southwick wrote that the Trump administration had provided supplemental evidence to the Fifth Circuit:

A supplemental record … include[d] affidavits explaining the types of heinous crimes committed by TdA members … how TdA infiltrates and expands its geographical territory.… an FBI Intelligence assessment explaining how Venezuela has used TdA to silence its critics in other countries … predict[ing that] … some Venezuelan officials will leverage TdA members to “threaten, abduct, and kill members of the US-based Venezuelan diaspora who are vocal Maduro critics.”

Judge Oldham, writing in dissent, found that:

The danger TdA poses to our Nation is hard to overstate. TdA is renowned not only “for its size,” but also for its “wanton use of violence.” ... TdA “use[s] excessive violence to demonstrate [its] power, ... murder[ing]” anyone who “betrays or does not obey orders.”… TdA members have been linked to homicides, kidnappings, hostage takings, rapes, burglaries, assaults, and other acts of violence and intimidation across our Nation.
Venezuelan TdA members took over [three] apartment complex[es] in Aurora, Colorado. [At one, t]hey kidnapped and tortured two innocent people.
[V]iolent attacks … have occurred all across the Nation. … In Miami, Florida, a former Venezuelan police officer was abducted and murdered by a TdA member. … [A] TdA member and illegal Venezuelan alien was arrested for a mass shooting in Chicago, Illinois. … [A] TdA member was arrested after he kidnapped and shot three women in the head in an alley in Chicago. … [I]n Athens, Georgia, a TdA member beat and strangled to death a nursing student named Laken Riley.
“[A]n internal safety bulletin sent across Border Patrol” recently “warn[ed],” [that] TdA members have been “given the ‘green light’ by the organization’s leaders to fire on authorities.” … One … apparent TdA member … was recently “accused of shooting two New York City police officers who confronted him.” … Another … TdA member was recently charged for attempting to strangle a federal agent to death.

Judge Rodriguez Gets Predatory Incursion Wrong

Does a Predatory Incursion Require an Attack by a Military Force or Organized Armed Force?

As I have written, in May, Judge Fernando Rodriguez, Jr., of the U.S. District Court for the Southern District of Texas concluded in J.A.V. v. Trump that:

President[ Trump]’s invocation of the AEA through the Proclamation exceeds the scope of the [AEA] and is contrary to the plain, ordinary meaning of the statute’s terms. As a result, the Court concludes that as a matter of law, the Executive Branch cannot rely on the AEA, based on the Proclamation, to detain the Named Petitioners and the certified class [consisting of Venezuelan aliens who have been or in the future may be designated as alien enemies under President Trump’s Proclamation and who are detained or reside in the Southern District of Texas], or to remove them from the country.

I discuss Judge Rodriguez’s ruling because his was the first sustained analysis by a federal judge of the meaning of the term “predatory incursion” for purposes of the AEA and because he made the same analytical errors that Judge Southwick would make months later in ascertaining the common understanding of “predatory incursion” around the time of the AEA’s enactment.

Judge Rodriguez wrote that the petitioners “highlight that Congress enacted the AEA as a war time measure, and that ‘Congress understood [“invasion” and ‘predatory incursion”] to mean a military incursion[’”] and that they “argue that the conduct by TdA and Venezuela as described in the Proclamation does not arise to an invasion or predatory incursion because it does not entail a military action, either actual or threatened”. Rodriguez then stated that the Trump administration “urge[s] a broader reading ... contend[ing] that while the definitions for these terms ‘include military action, ... neither is limited to such action’”. (Emphasis added by the Trump administration.) To the administration, a predatory incursion “encompasses (1) an entry into the United States (2) for purposes contrary to the interests or law of the United States” and, per Judge Rodriguez, “[a]pplying these broader concepts”, the administration “argue[s] that the Proclamation accurately describes a[] … ‘predatory incursion’ by detailing that ‘TdA’s illegal entry and continued unlawful presence is an encroachment on U.S. territory that entails hostile acts contrary to the rights of citizens to be free from criminality and violence.’”

Judge Rodriguez correctly explained the process by which a court should determine the historic meaning of a term undefined in statute:

Courts normally interpret statutory terms “consistent with their ordinary meaning at the time Congress enacted the statute.” … When ascertaining the plain, ordinary meaning of statutory language that harkens back to the nation’s founding era, courts rely on contemporaneous dictionary definitions and historical records that reveal the common usage of the terms at issue.

Further, he explained that:

While most English words have multiple dictionary meanings, courts “use the ordinary meaning of terms unless context requires a different result.” [quoting the Supreme Court’s 2007 decision in] Gonzales v. Carhart. … At times, terms can hold more than one ordinary meaning. [citing the Supreme Court’s 2008 decision in United States v. Santos]… Reviewing courts … apply “the contextually appropriate ordinary meaning, unless there is reason to think otherwise.” [quoting Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts]

Judge Rodriguez credited “Petitioners’ briefing [as] contain[ing] numerous sources contemporaneous to the enactment of the AEA in which … ‘predatory incursion’ expressly reference[s] or impl[ies] military action,” noting that the Trump administration “offer[s] no sources from the nation’s founding era as to the ordinary meaning of ‘predatory incursion’”. “To augment the parties’ submissions”, he then “reviewed numerous historical records using ‘invasion,’ ‘predatory incursion,’ and ‘incursion’ for the period from 1780 through 1820.” The records he reviewed are available as an appendix to his decision.

Judge Rodriguez concluded that his “review strongly supported the Petitioners’ position”, since “[i]n the significant majority of the records, the use of … ‘predatory incursion’ referred to an attack by military forces”, including by British forces during the Revolutionary War and “at times referr[ing] to entries by Native Americans into the western territories” as “organized group[s] of armed individuals entering an area to attack a fort, settlement, or town”. He further concluded that “at the time of the AEA’s enactment … the common usage of ‘predatory incursion’ … referenced 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”.

Judge Rodriguez then turned to President Trump’s proclamation:

Based on the plain, ordinary meaning of those terms in the late 1790’s, the Court concludes that the factual statements [in the Proclamation, taken as true] do not [describe an invasion or predatory incursion for purposes of the AEA].… As for “predatory incursion,” the Proclamation does not describe an armed group of individuals entering the United States as an organized unit to attack a city, coastal town, or other defined geographical area, with the purpose of plundering or destroying property and lives. While the Proclamation references that TdA members have harmed lives in the United States and engage in crime, the Proclamation does not suggest that they have done so through an organized armed attack, or that Venezuela has threatened or attempted such an attack through TdA members. As a result, the Proclamation … falls short of describing a “predatory incursion” as that concept was understood at the time of the AEA’s enactment.

But do the documentary sources unearthed by Judge Rodriguez (or, more likely, his law clerks) back up his conclusion? Consider two of those documents. First, in President George Washington’s annual message to the U.S. Congress on December 7, 1796, Washington stated that:

Measures calculated to ensure a continuance of the friendship of the Indians, and to preserve peace along the extent of our interior frontier, have been digested and adopted. In the framing of these, care has been taken to guard … our advanced settlements from the predatory incursions of those unruly individuals, who cannot be restrained by their Tribes. [Emphasis added.]

“[U]nruly individuals, who cannot be restrained by their Tribes”? That does not sound to me like a military force or an organized armed force. It sounds more like a drunken rampage by a mob, or at most a gang that couldn’t shoot straight.

Second, on August 5, 1812, Massachusetts Gov. Caleb Strong wrote to Secretary of War W. Eustis that “a person deputed by the towns of Eastport and Robinston ... applied to me, representing that they had no apprehensions of invasion by an authorized British force, but that there were many lawless people on the borders from whom they were in danger of predatory incursions”. (Emphasis added.)

“[L]awless people” not sanctioned by the British government? Again, that doesn’t sound to me like a military force or an organized armed force.

Nothing in those two documents indicates that President Washington or Gov. Strong were using “predatory incursion” in a manner they considered outside the bounds of its ordinary meaning(s). They were not engaging in hyperbole or metaphor. They were simply and matter-of-factly categorizing the situations on the ground as they saw them — as predatory incursions.

Can a Statutory Term Have More than One Ordinary Meaning?

Indeed, Judge Rodriguez admitted that in a minority of the records he reviewed, the term predatory incursion did not in fact refer to an attack by military forces, that “In … a few sources … the use of … ‘predatory incursion’ reference[d] a non-military action.” However, he concluded that “those rare uses do not represent the ordinary meaning”. But on what basis did Judge Rodriguez reach this conclusion, given that he had acknowledged that “[a]t times, terms can hold more than one ordinary meaning”? He doesn’t say.

The Supreme Court explained in Santos that:

When a term is undefined, we give it its ordinary meaning. … “Proceeds” can mean either “receipts” or “profits.” Both meanings are accepted, and have long been accepted, in ordinary usage. … The Government contends that dictionaries generally prefer the “receipts” definition over the “profits” definition, but any preference is too slight for us to conclude that “receipts” is the primary meaning of “proceeds.” [Emphasis in original.]
Under either of the word’s ordinary definitions, all provisions of the federal money-laundering statute are coherent; no provisions are redundant; and the statute is not rendered utterly absurd. From the face of the statute, there is no more reason to think that “proceeds” means “receipts” than there is to think that “proceeds” means “profits.”

President Washington would have been surprised to learn that he was using “predatory incursion” during his address to Congress in a manner not accepted in ordinary usage. A meaning of “predatory incursion” not limited to military action does not render any provision of the AEA incoherent, redundant or absurd. From the face of the AEA, there is no more reason to think that “predatory incursion” means a military action than there is to think that it means another type of hostile activity of a foreign nation on U.S. territory.

In its 1988 decision in United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., the Supreme Court stated (in language it approvingly quoted in its 2014 decision in Util. Air Regulatory Group v. EPA) that:

Statutory construction … is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear … or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.

“Predatory incursion” as not limited to military action is certainly compatible with the rest of the AEA.

Of course it is true that, as the Supreme Court stated in its 2012 decision in Kouichi Taniguchi v. Kan Pacific Saipan, Ltd., “[t]hat a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense” [citing the Court’s 1989 decision in Mallard v. United States Dist. Court for Southern Dist. of Iowa]. The Court concluded that if the definition of a word “has a sense divider denoting the most common usage”, this “suggests that other usages, although acceptable, might not be common or ordinary” and that “any definition of a word that is absent from many dictionaries and is deemed obsolete in others is hardly a common or ordinary meaning”.

But Judge Rodriguez provides no evidence that a meaning of predatory incursion involving a hostile but non-military action was not a common or ordinary meaning at the end of the 18th Century. Just ask George Washington. He could not tell a lie.

Based on Judge Rodriguez’s own historical research and his and the Supreme Court’s recognition that terms can hold more than one ordinary meaning, he was simply incorrect in concluding that the term “predatory incursion” in the AEA could only refer to a military force or an organized, armed force.

Judge Southwick Gets Predatory Incursion Wrong

Does a Predatory Incursion Require Military Action?

Judge Southwick wrote that “The parties’ primary interpretive disagreement about ‘predatory incursion’ is whether its contemporary, 1798 meaning demanded some level of military action.” In answering this question, he used the proper analytical tools, as had Judge Rodriguez. But, unfortunately, like Rodriguez, he came to the wrong conclusion.

Judge Southwick explained that:

According to Petitioners, the neighboring text supports their theory that military hostilities are required. Not only does the [AEA] include th[e] term [predatory incursion] alongside “declared war” and “invasion,” but the Act refers to “alien enemies,” which they argue is a law-of-nations concept that “require[s] armed hostilities between warring sovereigns.”

Judge Southwick then noted that “the Government contends Petitioners’ interpretation does not give independent meaning to each term in the disjunctive phrase ‘declared war ... or any invasion or predatory incursion[]’[”], but he found “little assistance” in the Trump administration’s argument “because Congress could have been identifying different levels and categories of armed conflict that would justify use of the AEA”. While it is conceivable that that was what Congress was doing, Judge Southwick provides no evidence indicating that that was in fact what Congress was doing.

He then “consider[ed] how the term was used during the period of the adoption of the AEA”. After reviewing a number of examples of the use of predatory incursion, he concluded that “These predatory incursions all involved a military force of some meaningful size, organized in a manner related to the kind of enemy involved, whether an Indian tribe, a distant foreign government who used its own forces or privateers, or an adjacent country using its own troops.”

Judge Southwick concluded that “a ‘predatory incursion’ described armed forces of some size and cohesion, engaged in something less than an invasion, whose objectives could vary widely, and are directed by a foreign government or nation”, that the proclamation’s factual findings (accepted as true) “do not support that an invasion or a predatory incursion has occurred”, and thus “that petitioners are likely to prove that the AEA was improperly invoked”.

But as with Judge Rodriguez, Judge Southwick provided no evidence that a meaning of predatory incursion involving a hostile but non-military action was not common or ordinary at the end of the 18th Century.

Can Military Action Be Carried Out Through Irregular Warfare Using Weapons Such as Piracy, Drug Smuggling, and Illegal Immigration?

Judge Southwick wrote that:

[T]he manner in which declared wars, invasions, and predatory incursions are fought will often not be the same, even in broad strokes, as in 1798. Modern warfare involves different categories of weapons, and the ability of nations to harm other nations can involve actions altogether different from the past, such as using computers to disrupt or even cripple an enemy. That is not to say that, for the AEA to apply, any current method of conducting hostilities suffices without showing it is in some manner comparable to an invasion or predatory incursion as understood in 1798.

Fair enough. So, let us look at some of the weapons of modern warfare and consider whether they are “in some manner comparable to … [a] predatory incursion as understood in 1798”.

As I have mentioned, President Trump’s proclamation declared that TdA was conducting “irregular warfare”. Judge Southwick noted that the proclamation contained “no description of what is meant by irregular warfare”. But the context makes clear that Trump was referring in large measure to drug trafficking, as when declaring that TdA “used drug trafficking as a weapon against our citizens” and that “Maduro leads the regime-sponsored enterprise Cártel de los Soles, which coordinates with and relies on TdA and other organizations to carry out its objective of using illegal narcotics as a weapon to ‘flood’ the United States.” (Emphasis added.)

As to drug trafficking, though, Southwick concluded that:

We accept the finding that drug-trafficking is being used as a weapon, but we hold it is not within even an updated meaning of invasion or predatory incursion. The completely accurate implication of this finding is that drugs are a scourge and weaken our citizens and our country, but it is not beyond reason that in 1798 an enemy country could try to sicken and physically weaken those within the United States. That would not have been an invasion or predatory incursion then, and it is not one today. [Emphasis added.]

And the proclamation referred to TdA’s brutal crimes including “extortions”.

And the proclamation referred to illegal immigration, declaring that “TdA has engaged in and continues to engage in mass illegal migration to the United States to further its objectives of harming United States citizens, undermining public safety, and supporting the Maduro regime’s goal of destabilizing democratic nations in the Americas, including the United States.”

But Judge Southwick dismissed fomenting illegal immigration as even conceivably amounting to a predatory incursion:

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. There is no finding that this mass immigration was an armed, organized force or forces. It is an action that would have been possible when the AEA was written, and the AEA would not have covered it. The AEA does not apply today either. [Emphasis added.]

Assuming for the sake of argument that a “predatory incursion” requires an armed force of some size and cohesion, why precisely cannot a predatory incursion now involve (or in 1798 have involved) such a force engaging in irregular warfare with weapons such as drug smuggling, piracy, and illegal immigration?

As to drug trafficking, there are certainly contemporary and historical instances in which countries have tried to, or at the very least were alleged to have tried to, in Judge Southwick’s words, “sicken and physically weaken the citizens of enemy nations”.

For instance, it is widely accepted that in the 13^th Century, as Mark Wheelis, Division of Biological Sciences, Section of Microbiology, University of California, Davis, concluded to be plausible, “the Mongol army hurled plague-infected cadavers into the besieged Crimean city of Caffa, thereby transmitting the disease to the inhabitants”. Why could this not be considered a predatory incursion?

Specifically as to drug trafficking, on April 20, 1994, Sen. Jesse Helms (R-N.C.) argued on the Senate floor that:

The KGB was institutionally dedicated to the destruction of the United States of America; therefore, the KGB’s involvement in narcotics trafficking makes perfectly good sense. Drugs have been an increasingly destructive force in our society for decades, poisoning our youth and fanning the flames of violence in our cities.
Yet, for some reason … the State Department has been less than aggressive in addressing the role that the KGB — and Soviet allies such as Cuba — have played in the tidal wave of illegal narcotics pouring into the United States.
It is well known that the KGB and Cuba did work hand in glove with Colombian drug traffickers, and Fidel Castro and the Soviets got quite a return on their “investments.” They helped poison America's youth while raking in millions in profits.

Why could this not be considered a predatory incursion?

In 2024, the U.S. House of Representatives’ Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party concluded that:

The [People’s Republic of China] PRC, under the leadership of the Chinese Communist Party (CCP), is the ultimate geographic source of the fentanyl crisis. Companies in China produce nearly all of illicit fentanyl precursors, the key ingredients that drive the global illicit fentanyl trade.
[T]he PRC government, under the control of the CCP … [d]irectly subsidizes the manufacturing and export of illicit fentanyl materials and other synthetic narcotics through tax rebates … [g]ave monetary grants and awards to companies openly trafficking illicit fentanyl materials and other synthetic narcotics … [h]olds ownership interest in several PRC companies tied to drug trafficking … [f]ails to prosecute fentanyl and precursor manufacturers … [a]llows the open sale of fentanyl precursors and other illicit materials on the extensively monitored and controlled PRC internet … [c]ensors content about domestic drug sales, but leaves export-focused narcotics content untouched … [and s]trategically and economically benefits from the fentanyl crisis.

The Select Committee also noted that People’s Liberation Army military strategists Qiao Liang and Wang Xiangsui wrote in 1999 in their book titled (as translated into English) Unrestricted Warfare: China’s Master Plan to Destroy America that “we can point out a number of other means and methods used to fight a non-military war, some of which already exist and some of which may exist in the future, for example … drug warfare that cause disasters in other countries and make huge profits”.

Why could this not be considered a predatory incursion?

The State Department’s Office of the Historian has explained that:

The Barbary States were a collection of North African states, many of which practiced state-supported piracy in order to exact tribute from weaker Atlantic powers.… The United States fought two separate wars with Tripoli (1801-1805) and Algiers (1815–1816), although at other times it preferred to pay tribute to obtain the release of captives held in the Barbary States.
The practice of state-supported piracy and ransoming of captives was not wholly unusual for its time. Many European states commissioned privateers to attack each others’ shipping.

Yes, the Barbary States were nations, but that does not diminish the fact that their piracy was viewed as a military problem requiring a military response. And is not the ransoming of captives a form of extortion?

If the Barbary States had carried out their piracy in U.S. territorial waters, rather than in the Mediterranean Sea and the Atlantic Ocean, President Jefferson would have very likely characterized their acts as predatory incursions, just as President Trump has done regarding TdA’s extortions and other acts.

As to piracy more generally, Judge Oldham explained that:

France gave free rein to privateers, “or private armed ships authorized by their government to attack enemy shipping.” … These privateers “made a lucrative business of raiding American commerce, especially in the Caribbean.”… In 1795 alone, Secretary of State Timothy Pickering estimated, 316 American ships were captured … .
Much of the privateers’ activity “bordered on unabashed piracy.”

In fact, during the Fifth Circuit’s oral argument for W.M.M. v. Trump, a judge (I believe Judge Southwick) asked Lee Gelernt, representing the petitioners-appellants and deputy director of the American Civil Liberties Union’s Immigrants’ Right Project, “[w]hy wasn’t this [TdA’s activities] be similar to what privateers are doing, what Indian tribes are doing, which is a temporary incursion into some area causing damage”?¹ “The privateers were officially part of another government” was Gelernt’s only response, which goes to whether a predatory incursion was carried out by a foreign government, but fails to dispute that piracy itself could properly be considered a predatory incursion.

Why couldn’t TdA’s activities be considered a predatory incursion “similar to what privateers” did?

As to piracy of another sort, admittedly two centuries after the enactment of the AEA, the First Circuit wrote in its 1992 decision in Davrod Corp. v. Coates that the 1976 “Fishery Conservation and Management Act” “was an elaborate and path-breaking legislative enterprise intended to protect the American fishing industry, and to preserve endangered stocks of fish, from what were perceived to be predatory incursions by foreign fishing fleets into American waters”! (Emphasis added.)

As to fomenting illegal immigration, can we so cavalierly dismiss “[a] country’s encouraging” persons “to enter [another] country illegally” as ever constituting a predatory incursion? Consider that, as Seth Jones explained for the Center for Strategic and International Studies:

In 2021, Belarusian leader Alexander Lukashenko threatened to “flood” the European Union with “drugs and migrants,” and then his government sent thousands of migrants from Iraq and other countries to the borders of Latvia, Lithuania, and Poland in 2021 and 2022. In November 2023, Finland closed its border with Russia following a surge of border crossings instigated by Russia; 900 third-country nationals arrived in Finland without valid documentation in November alone. In the summer of 2024, Poland experienced a surge to nearly 400 illegal border crossings a day. These border crises were likely orchestrated to pressure state institutions, drain resources, and fuel anti-migrant rhetoric exploited by far-right parties across Europe.

Why could this not be considered a predatory incursion?

Judge Oldham Gets Predatory Incursion Wrong

Judge Oldham gets it right in concluding that TdA’s actions as described in President Trump’s proclamation constitute a predatory incursion. But his rationale is oh so wrong. For Oldham did not conclude that such actions constitute a predatory incursion based on the proper meaning of the AEA’s language. Rather, he concluded that a predatory incursion is whatever a president says it is, and that federal courts must accept as conclusive a president’s pronouncement, no matter how utterly absurd.

Judge Oldham concluded that:

[T]he Supreme Court held that Ludecke was not entitled to … relief … because courts may never second-guess whether a “state of war” existed. … It is for the political branches — specifically, the President — to determine whether the powers conferred under the AEA were still needed. And in 1948, “[t]he political branch of the Government ha[d] not brought the war with Germany to an[] end.” ... “On the contrary,” the President “ha[d] proclaimed that ‘a state of war still exist[ed].’” … That the war was in fact over, and that Germany had in fact surrendered, was irrelevant. “The Court would be assuming the functions of the political agencies of the Government” to second-guess the President’s determination. … Simply put, it was “not for [the Court] to question a belief by the President that enemy aliens” remained dangerous simply because “the guns [we]re silent.” [Emphasis in original.]

Oldham then broadened the principle that federal courts could never second guess a president’s determination that a declared war was still ongoing to include all of the AEA’s preconditions:

Determining whether the AEA’s preconditions are satisfied — whether there is a declared war, or “any invasion or predatory incursion” being “perpetrated, attempted, or threatened,”… depends upon “matters of political judgment for which judges have neither technical competence nor official responsibility.” [quoting Ludecke]
Time and time and time again, the Supreme Court has instructed that the President’s declaration of an invasion, insurrection, or incursion is conclusive. Final. And completely beyond the second-guessing powers of unelected federal judges. [Emphasis added.]
Ludecke controls this case. The President has determined that an invasion or predatory incursion is threatened. Countermanding that determination would mean “assum[ing] the functions” of the political branches. … That lies beyond our “official responsibility.”…
It also exceeds our “technical competence.”
Ludecke’s holding cannot be limited to only congressional declarations of war. … [I]n upholding the President’s actions, the Court’s rationale swept far more broadly than declared wars. The Court focused on the fact that the President had proclaimed that a state of war continued to exist even after the shooting stopped. … The Court could not “question” the President’s “belief” about the dangers “enemy aliens” posed.

The Trump administration’s arguments mirrored those of Judge Oldham. It contended in its Motion to Vacate to the U.S. District Court for the District of Columbia that “[t]he Constitution simply provides no basis for a court to determine when this AEA trigger has been met, and thus there is no basis for second-guessing the policy judgment by the Executive that … an ‘invasion’ or ‘predatory incursion’ is occurring”, and it contended in its Defendants’ Opposition to Motion for Preliminary Injunction to the same court that “As for whether the [AEA’s] preconditions are satisfied, that is the President’s call alone; the federal courts have no role to play.”

Similarly, in the Fifth Circuit’s oral argument, when asked “What specific terms can we interpret that are relevant in this case?”, Drew Ensign, deputy assistant attorney general for the Office of Immigration Litigation of the U.S. Justice Department’s Civil Division, replied that “All the terms of the AEA can be construed, but as to the President’s determination that the facts meet those definitions, that is not reviewable under Ludecke.”² Shortly after, he stated that “The president’s determination that the factual prerequisites of the AEA have been met is not subject to judicial review”.³ Just to be safe, he then added “but if it is, it is subject to extremely deferential review”.

Incidentally, there was one significant divergence in viewpoint between Judge Oldham and the Trump administration. The administration argued in its Motion to Vacate that “The President’s determination that an ‘invasion’ or ‘predatory incursion’ has occurred under the AEA is a nonjusticiable political question. … Any challenge to that determination is therefore foreclosed.” But Oldman concluded that “The political question doctrine is not the proper framework for thinking about this case.”

What should we make of Judge Oldham’s contentions? First, of course, the Supreme Court has never instructed that the president’s declaration of a predatory incursion is conclusive, as it has never until now been presented with an AEA case involving a predatory incursion.

But, more fundamentally, Judge Oldham took the Supreme Court’s statement in Ludecke regarding “matters of political judgment” out of context. Let me provide the Court’s full statement:

The political branch of the Government has not brought the war with Germany to an end. On the contrary, it has proclaimed that “a state of war still exists.” ... The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.

To the Supreme Court, the matter of political judgment was whether a state of war still existed, not whether any of “the AEA’s preconditions are satisfied”. A war’s termination is inherently “a political act”, as the Supreme Court concluded in Ludecke, as is a declaration of war. The political branches of government are by definition the deciders as to when and whether a war is to be considered over.

But whether a “predatory incursion” has in fact occurred, or has been threatened, is not a political act. It is first a matter of statutory interpretation — what does predatory incursion mean? — and second a matter of whether (what are accepted to be) the facts on the ground align with such definition.

Further, even as to the termination of a state of war, there are two political branches of the federal government — the legislative branch and the executive branch. Judge Oldham focused only on the executive branch: “It is for the political branches — specifically, the President — to determine whether the powers conferred under the AEA were still needed.” But, as the Supreme Court stated in Ludecke, “‘The state of war’ may be terminated by treaty or legislation or Presidential proclamation.” As Oldham wrote more generally, “regardless of whether Congress or the President had made the judgment call required to trigger the AEA, courts had no business getting involved”. But what if Congress had ended “the state of war” through legislation, even possibly overriding the president’s veto, while the president believed it to still be ongoing? Is it Judge Oldham’s view that both Congress and the federal courts would have to yield to the president’s determination?

When the Supreme Court stated in Ludecke that “[t]he very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion”, it was almost surely referring to the president’s unfettered discretion in choosing which enemy nationals to remove using his power under the AEA. But a president only acquires such power after satisfying the AEA’s preconditions to the grant of such power.

As D.C. Circuit Court Judge Karen Lecraft Henderson concluded in her concurrence in J.G.G., while “the AEA vests in the President near-blanket authority to detain and deport any noncitizen whose affiliation traces to the belligerent state”, “[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”. She explained that:

Ludecke did not foreclose courts’ ability to interpret the AEA’s predicate acts … or whether such conditions exist. Instead, Ludecke stands for the proposition that when and by what means to end that acknowledged war are choices “constitutional[ly] commit[ted] ... to a coordinate political department.” [quoting the Supreme Court’s 1993 decision in Nixon v. United States, quoting its 1962 decision in Baker v. Carr]

Judge Hendeson wrote that “The elected branches — not the unelected bench — decide when a war has terminated. That is a question of fact for elected leaders. That does not mean that courts cannot pass on the legal meaning of statutory terms.” (Emphasis in original.) And she noted that the “conditional questions — the legal meaning of war, invasion, and predatory incursion — are well within courts’ bailiwick”, for “[t]he parties disagree about the meaning of words … [which t]he judiciary can resolve … with settled tools of statutory construction”. Further, she wrote that:

Under the Constitution … “[i]t is emphatically the province and duty of the judicial department to say what the law is.” [quoting the Supreme Court’s 1803 decision in Marbury v. Madison] “When the meaning of a statute [is] at issue, the judicial role [is] to “interpret the act of Congress, in order to ascertain the rights of the parties.’” [quoting the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, quoting its 1840 decision in Decatur v. Paulding]
In addition, statutory interpretation is judicially manageable because it does not require courts to exercise “their own political judgment[.]” [quoting the Supreme Court’s 2019 decision in Rucho v. Common Cause]… Because questions about meaning are objectively discernible from statutory text and context, courts can decide them “by applying their own judgment.” [quoting Loper Bright]

As D.C. Circuit Court Judge Patricia Millett put it in her concurrence in J.G.G. v. Trump, “The gravamen of the government’s position is that the President has total and unreviewable authority to decide whether the statutory prerequisites for invoking the AEA are met.” But “[t]hat argument is not likely to succeed”, for “the discretion to which [Ludecke] referred was the President’s judgment whether, in the conduct of a war, to invoke the [AEA] and, if so, whether to remove, relocate, or just detain alien enemies”. “The separate issue of what the AEA’s text means is a question of law, not discretion.” And as Columbia Law School professor Gerald Neuman put it, judicial review “extends to ‘the construction and validity of the [AEA],’ but not to the merits of the Executive's discretionary decision whether to detain or expel an enemy alien”.⁴

Judge Oldham contended that “the majority holds that … President Trump must plead sufficient facts — as if he were some run-of-the-mill plaintiff in a breach-of-contract case — to convince a federal judge that he is entitled to relief”. But this is not what Judge Southwick would require. Southwick wrote that:

If judicial review is precluded except for “questions of interpretation and constitutionality” of the [AEA] … then the President’s fact-findings are not within our review authority. For example, Petitioners here have challenged the President’s finding that the Maduro regime in Venezuela is directing the actions of TdA in this country. We interpret the Ludecke Court to have made conclusive the President’s “belief” that certain categories of aliens are enemies and engaged in hostile actions. … Thus, even though Petitioners insist there is no basis to find the Maduro regime is directing TdA’s action in the United States, it is not for a court to review a President’s findings about the facts when he is employing the AEA. We accept all Presidential fact-findings about what events have occurred.

Relatedly, Judge Oldham raised a concern about the need to preserve governmental secrets:

[S]uppose … there were some concrete evidence constituting “strict technical proof.” … Why should the President need to disclose it? I see no reason. “[T]he disclosure of the evidence might reveal important secrets of state.” [Emphasis added.]
[S]ome national-security secrets are better kept, well, secret — even from the other branches.
As the Supreme Court explained shortly after World War II … [in its 1948 decision in Chicago & S. Air Lines v. Waterman S.S. Corp.]:
… It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.
Because we cannot know the “secret” “information” upon which the President may be relying, it is “intolerable” for the majority to “nullify” the President’s “action[].” [quoting Chicago]

But, if a court, as Judge Southwith wrote, is to accept the veracity of facts as presented by the president, there would be no need for an administration to provide “concrete evidence” in the first place, even to federal courts.

Judge Southwick did explain, though, that the phrase “questions of interpretation” refers to “interpretating the statute’s text and also applying the interpretation”. Let’s say for the sake of argument that the AEA’s term “predatory incursion” is best interpreted as requiring military action (which I believe is not the case). If the facts presented by the president — taken as true — do not describe a military action, then how is it possible to interpret the AEA’s text without applying that interpretation to those facts? As Judge Southwick wrote, Ludecke did not “suggest[] that ‘interpretation’ was a pointless endeavor, that a court could make its interpretation for the interest of legal scholars but was prohibited from applying that interpretation to the facts before it”. Further, interpretation “implies the application of law to facts”, that a court “see[s] if those facts meet the meaning of the statute”.

Judge Oldham replied that it “is wrong” to conclude that interpreting a statute “necessarily includes both interpreting ‘the statute’s text’ and then ‘applying the interpretation’ to the facts”, which “confuses the differing natures of the two inquiries”. Rather, federal courts “can interpret the [AEA], so long as they do not countermand the President’s conclusive invocation of it”.

Oldham called attention to the Supreme Court’s 2025 decision in Seven Cnty. Infrastructure Coal. v. Eagle County: “As the Supreme Court explained … when writing in the ordinary administrative-law context, although ‘the meaning of’ a discrete term ‘is a question of law’ that fits well within the Court’s wheelhouse, a fact-intensive application of that same term may often be grounded more in judgments of policy than legal analysis.” [quoting Eagle County] But the Court in Eagle County merely stated that in deciding whether an Environmental Impact Statement meets the statutory test of being “detailed”, “what details need to be included in any given EIS … [f]or the most part … does not turn on the meaning of ‘detailed’ — instead it ‘involves primarily issues of fact’”. Well, if it does not turn on the meaning of “detailed”, then it isn’t a question of statutory interpretation in the first place! Further, the Court stated that “whether a particular [EIS] is detailed enough in a particular case itself requires the exercise of agency discretion — which should not be excessively second-guessed by a court”. (Emphasis added.) There is a world of difference between not excessively second-guessing an agency action and not examining it at all!

Judge Oldham contended that “[T]he majority has only identified two partial sentences arguably saying that this court can countermand the President’s determination that an invasion is perpetrated or threatened. But neither sentence comes close to bearing the weight the majority places on it.” He then took on the first “partial sentence”, which was the Supreme Courts’ conclusion in its 2025 decision in Trump v. J.G.G. that “Although judicial review under the AEA is limited, we have held that an individual subject to detention and removal under that statute is entitled to ‘judicial review’ as to ‘questions of interpretation and constitutionality’ of the Act as well as whether he or she ‘is in fact an alien enemy fourteen years of age or older’.” The Court in J.G.G. was quoting from Ludecke, where it had concluded that “As Congress explicitly recognized in the recent Administrative Procedure Act [APA], some statutes ‘preclude judicial review.’ … Barring questions of interpretation and constitutionality, the Alien Enemy Act of 1798 is such a statute.”

Oldham wrote that:

The majority reads this statement for all it could be worth — despite the fact that Justice Frankfurter’s paean to judicial restraint in Ludecke does not contain any other clauses that comport with the majority’s judicial-supremacist reading of that case.
The majority says that the very concept of “interpretation” requires searching judicial review — as if that singular word is a skeleton key that opens to every alien enemy every legal door in every federal courthouse. That is wrong. I have also “interpret[ed]” the Act. I did so just as Ludecke did by saying that President Trump’s invocation of it is conclusive. And it is hard to see how that reading conflicts with J.G.G. because that case rested on, you guessed it, Ludecke. [Emphasis in original.]

It is certainly not beyond the realm of possibility that the Supreme Court in Ludecke and J.G.G. was instructing lower federal courts that in interpreting the AEA, they were simply to interpret it in the manner instructed by the president. But I don’t find that a plausible reading of either decision. For if that was what the Court meant, I would think the Court would have come out and explicitly said so, rather than counting on federal courts to intuit such a far from common meaning of “interpret”.

Judge Oldham then argued that:

The ‘best reading of a statute’ sometimes is ‘that it delegates discretionary authority to’ the Executive. [quoting Loper Bright]. In such cases, the judicial duty ‘to independently interpret the statute’ is ‘fulfill[ed] ... by recognizing’ the ‘delegation[].’” [again quoting Loper Bright] … So by treating the President’s determination as conclusive, I am simply fulfilling the judicial obligation to render the best interpretation of the AEA — in precisely the way Ludecke did.

To evaluate Oldham’s argument, we need to consider the Supreme Court’s full statement in Loper Bright:

When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, “fix[ing] the boundaries of [the] delegated authority,” … and ensuring the agency has engaged in “‘reasoned decisionmaking’” within those boundaries.

But that is precisely what Judge Southwick did (keeping in mind that the APA does not apply to a president’s actions) — he recognized Congress’ constitutional delegation of discretionary authority in the AEA to the president and fixed the boundaries of that delegated discretionary authority.

Judge Oldham also quoted from the Supreme Court’s conclusion in its 1994 decision in Dalton v. Specter that “Where a statute … commits decisionmaking to the discretion of the President, judicial review of the President's decision is not available.” But, of course, the Supreme Court has already determined in Ludecke that the AEA does not preclude judicial review as to “questions of interpretation and constitutionality”.

Then Oldham argued that:

[T]he relevant clause in Justice Frankfurter’s opinion for the Court [in Ludecke] says we can consider “‘questions of interpretation and constitutionality’ of the Act.” … Does that mean courts are now empowered to hold that the 227-year-old statute, which has been invoked numerous times over the centuries in numerous circumstances, is unconstitutional? Of course not. In the same breath that the Ludecke Court said courts can consider constitutional questions, it supplied in the answer: The statute “is valid as we have construed it.” … So yes, courts can consider the constitutionality of the AEA, so long as they hold it constitutional. [Emphasis added by Judge Oldham.]

Lower federal courts indeed cannot find the AEA unconstitutional, but not because it is 227 years old. Rather, they cannot because the Supreme Court in Ludecke has already determined it to be constitutional — at least “as [the Supreme Court] has construed it”. The Supreme Court itself could “construe” the constitutionality of the AEA in Ludecke precisely because it had the power to rule it unconstitutional (if that had been its conclusion). But the Court in Ludecke did not address all conceivable constitutional issues involving the AEA. In fact, the Court itself later resolved a constitutional issue in J.G.G. when it ruled that “the detainees are entitled to notice and opportunity to be heard ‘appropriate to the nature of the case.’ … [and t]he notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal [under the AEA] occurs.”

As I noted, Judge Oldham stated that the president’s “invocation” of the AEA is “conclusive”, but he then added “That does not mean the President’s interpretation of the AEA is conclusive.” (Emphasis in original.) He assured that “I am not arguing that the President has conclusive interpretative power to proclaim that AEA invasions include denying that baseball is our national pastime or double parking at the grocery store.” But what does it mean to say that the president’s invocation of the AEA is conclusive but his interpretation of it is not? If, as Oldham concluded, “the President’s declaration of an … insurrection is conclusive” and a court cannot apply its interpretation of what constitutes a predatory incursion to the facts as set forth by the president, then on what possible basis could a court stop a president from conclusively concluding that “denying that baseball is our national pastime or double parking at the grocery store” are incursions? I see none.

Oldham then turned to “the majority’s second sentence”. He explained that:

That sentence comes from dicta in … [the Supreme Court’s 1950 decision in] Eisentrager. … That dictum does nothing to support the majority’s scrutinizing judicial review.
All Eisentrager said is that under the AEA, the court may “ascertain the existence of a state of war.” … [citing Ludecke] But whether a state of war exists and how one should go about figuring that out are two very different questions. Fortunately, Ludecke — the very case Eisentrager relied on — tells us how to answer the “how” question: We must determine whether “a state of war” exists by looking to the determination of the political branches. … So Eisentrager’s dictum — even if given full force — cannot support the majority’s decision to countermand the President’s determination here. [Emphasis in original.]

As I have already discussed that issue, I will not revisit it.

Conclusion

So, we have Judge Oldham believing that “we must treat the President’s extraordinarily fact-intensive application of law-to-fact as conclusive” and Judge Southwick believing that “The unreviewability of the President’s factual findings is a discrete issue separate from whether the statutory label the Proclamation places on a finding is consistent with a court’s interpretation of a statute.” Consequently, Judge Southwick concluded that “applying our obligation to interpret the AEA, we conclude that the findings do not support that an invasion or a predatory incursion has occurred”. Of course, Judge Oldham disagreed with that conclusion.

Both judges get it partially right and partially wrong. In interpreting the AEA, federal courts should determine whether the facts as set forth by a president satisfy the Act’s preconditions. But given the facts as President Trump has set them forth in his proclamation, TdA is perpetrating a predatory incursion against U.S. territory. And thus President Trump is within his rights to consider members of TdA as alien enemies under the AEA, and to treat them accordingly.