Judge rules that Trump’s use of Alien Enemies Act was not legal

Donald Trump leaving the West Wing of the White House, Monday, April 7, 2025, in Washington (AP Photo/Mark Schiefelbein).

A New York judge on Tuesday became the second to find President Donald Trump‘s invocation and use of the Alien Enemies Act (AEA) “unlawful” and barred the government from deporting anyone in his district under the auspices of the obscure wartime law.

In a 22-page opinion by U.S. District Judge Alvin K. Hellerstein, a Bill Clinton appointee, the court begins with an appeal to the nation’s founding principles — by juxtaposing the rights to “Life, Liberty and the pursuit of Happiness” with the behavior of the Trump administration.

With a familiar recitation of the facts, the judge takes stock of how the government, in violation of another court’s bench order, flew 200 immigrant detainees “from this country to El Salvador’s Terrorism Confinement Center (CECOT) with faint hope of process or return.”

“The destination, El Salvador, a country paid to take our aliens, is neither the country from which the aliens came, nor to which they wish to be removed,” the opinion goes on. “But they are taken there, and there to remain, indefinitely, in a notoriously evil jail, unable to communicate with counsel, family or friends.”

Such removals would be ongoing, the court says, noting that those efforts are “thwarted only by order of this and other federal courts.”

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The judge added that removals of the sort carried out by the Trump administration do not align with the due process rights guaranteed by the U.S. Constitution — or the internal procedures in the AEA itself. In fact, the court says the AEA was improperly invoked in the first place.

“[T]he Presidential Proclamation, in mandating removal without due process, contradicts the AEA,” Hellerstein writes. “[S]ince [the government has] not demonstrated the existence of a ‘war,’ ‘invasion’ or ‘predatory incursion,’ the AEA was not validly invoked by the Presidential Proclamation.”

Under the terms of the AEA, an actual war with a “foreign nation or government” — or an “invasion or predatory incursion” carried out by such a foreign entity — is a condition precedent.

That, however, is simply not the case, the judge says.

Trump claims Venezuelans affiliated with transnational gang Tren de Agua (TdA) satisfy the second prong of the AEA by “perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.”

But the court rejected this understanding of the statute’s terms.

From the opinion, at length:

An “invasion,” as used in the AEA, was understood as a “[h]ostile entrance upon the right or possessions of another” or a “hostile encroachment,” such as when “William the Conqueror invaded England.” … In a similar vein, an “incursion” was understood to mean an “[a]ttack” or “[i]nvasion without conquest.” … The modern definitions are similar. An incursion means “a hostile inroad or invasion” or “a sudden attack.”

“[T]he predicates for the Presidential Proclamation, that TdA has engaged in either a ‘war,’ ‘invasion’ or a ‘predatory incursion’ of the United States, do not exist,” Hellerstein goes on. “There is nothing in the AEA that justifies a finding that refugees migrating from Venezuela, or TdA gangsters who infiltrate the migrants, are engaged in an ‘invasion’ or ‘predatory incursion.’ They do not seek to occupy territory, to oust American jurisdiction from any territory, or to ravage territory. TdA may well be engaged in narcotics trafficking, but that is a criminal matter, not an invasion or predatory incursion.”

While the AEA was not properly invoked, the court also found that the Trump administration failed to properly apply the law.

In various cases, the government has initially resisted the AEA requirement mandating that those subject to arrest and removal be granted notice and an opportunity to contest their detention and deportation. In time, however, federal agents have acquiesced, at least a little, to those mandatory due process requirements.

The U.S. Supreme Court recently elaborated on what this process would look like — an opinion the district court liberally quotes from.

“More specifically, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the Act,” a per curiam opinion issued in early April explains. “The 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 occurs.”

The Hellerstein opinion contains a brief survey of how notice has been provided to would-be AEA detainees in various districts and finds it wanting. The judge describes such efforts by the government as being provided “only in the most cursory form, and not always.”