When the Supreme Court ruled roughly a month ago in Trump v. J.G.G., five justices removed at least a large part of the Alien Enemies Act case from Judge James Boasberg’s jurisdiction—a move some interpreted as a tactical and procedural win for the administration. But just weeks later, the resulting legal landscape reveals a growing pattern of judicial resistance–one that may undermine the administration’s position when the Court ultimately revisits the Alien Enemies Act litigation on its merits.
The Supreme Court’s decision to vacate Judge Boasberg’s orders on jurisdictional grounds allowed the Trump administration to avoid a potential nationwide injunction. Judge Boasberg had certified a class of “all noncitizens in U.S. custody who are subject to the Mar. 15, 2025 [Alien Enemies Act (AEA)] Presidential Proclamation” and blocked their removal from the country through a temporary restraining order. The Supreme Court held that the case should have been brought in habeas in the location where plaintiffs were being held in custody. Habeas allows for class actions but only for other similarly situated individuals in the same district where the court sits. This fragmentation has forced plaintiffs to litigate in multiple jurisdictions across the United States, a mad scramble that not only diffuses their efforts through a patchwork of jurisdictions, but also increases the risk that some individuals may fall through the cracks without legal representation.
But that very fragmentation—i.e. forcing civil rights groups like the ACLU to fight case-by-case and district-by-district—may ultimately be to the detriment of the administration.
Multiple federal judges across the country have issued rulings that challenge the administration’s use of the AEA. Judges from different parts of the ideological spectrum have now rejected the administration’s invocation of the Act:
- Judge Charlotte Sweeney (Biden appointee) on May 6 preliminary injunction:
“Respondents’ arguments are threadbare costumes for their core contention: ‘As for whether the Act’s preconditions are satisfied, that is the President’s call alone; the federal courts do not have a role to play.’ This sentence staggers. It is wrong as a matter of law and attempts to read an entire provision out of the Constitution.”
“According to Respondents, the President determined TdA is ‘perpetuating an invasion or predatory incursion’ in the United States. In making this argument, Respondents read the word ‘invasion’ as broadly including a ‘hostile entrance,’ or ‘hostile encroachment.’ This argument and the authority marshalled in support of it are unpersuasive.”
“Having considered historical definitions of the Act’s language and attendant historical records, the Court determines that Petitioners are likely to succeed on the merits of their claim that the President’s invocation of the Act ‘through the Proclamation exceeds the scope of the statute’ and is therefore unlawful.”
- Judge Alvin Hellerstein (Clinton appointee) on May 6 preliminary injunction:
“I hold that the 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. Other courts have resolved this issue similarly. [He cites the similar district court opinions in D.C. District Court, Southern District of Texas, and District of Colorado.]
“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.”
- Judge Fernando Rodriguez (Trump appointee) on May 1 permanent injunction:
“The question that this lawsuit presents is whether the President can utilize a specific statute, the AEA, to detain and remove Venezuelan aliens who are members of TdA. As to that question, the historical record renders clear that the President’s invocation of the AEA through the Proclamation exceeds the scope of the statute 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, or to remove them from the country.”
Also of note (in closely related cases):
- Judge Stephanie Gallagher (Trump appointee) on April 23 enforcement of settlement:
Defendants have provided no evidence, or even any specific allegations, as to how [plaintiff], or any other Class Member, poses a threat to public safety [under the AEA].
- Judge Karen Henderson (Reagan and G.W. Bush appointee) concurring with Judge Patricia Millett (an Obama appointee) on March 26:
“Quoting a dictionary over two-hundred years post-enactment, the government claims that the term ‘invasion’ as used in the AEA encompasses ‘the arrival somewhere of people or things who are not wanted there.’ The text and its original meaning say otherwise.
“The theme that rings true is that an invasion is a military affair, not one of migration.”
These rulings suggest an emerging consensus that the AEA’s application in this context is legally untenable.
The impact of this snowballing consensus was made clear this week in court. At a May 7 hearing, Judge Boasberg recited the litany of other federal court rulings that found “the proclamation did not properly invoke the AEA,” and then asked government counsel: “You agree that that’s where things stand, right?” The government’s lawyer agreed.
The exchange shows how judges will take note of—if not explicitly cite—the growing judicial chorus rejecting the administration’s interpretation. For members of the Supreme Court, it may prove more difficult to reverse all these cases–and easier to align with what increasingly appears to be a consensus legal judgment.
The Court has already signalled its willingness to rein in Trump’s immigration policies. As Steve Vladeck has noted in these pages, J.G.G. was also the case in which all nine Justices held that due process protections must apply in AEA proceedings—an important check on the executive’s authority.
Will the lower courts’ consensus hold? The one jurisdiction most likely to break in favor of the administration is the highly conservative Fifth Circuit. Indeed, it’s possible that forum-shopping helped shape the administration’s choice to conduct the so-called AEA deportation flights from Texas in the first place.
In short, the Trump administration’s initial procedural victory in the Supreme Court may have provided short-term relief, but the spreading judicial opposition suggests a far more challenging road ahead. The emerging consensus among federal judges against the AEA’s application in this context—combined with the lack of U.S. intelligence assessments supporting the administration’s factual claims—increases the odds of a loss when the merits of these cases reach their final destination at the High Court.
