Invasion

In a crucial appellate court oral argument, the Trump Administration admits that their position says the answer is "yes." The exchange highlights the dangers of judicial deference on judicial invocation of extraordinary emergency powers.

Ilya Somin | 1.23.2026 4:52 PM

Yesterday, the en banc US Court of Appeals for the Fifth Circuit heard oral argument in W.M.M. v. Trump, a case challenging Trump's invocation of the Alien Enemies Act of 1798. The full Fifth Circuit - all 17 judges - were reviewing the panel decision in that case ruled that Trump's invocation of the AEA as a tool for detention and deportation of migrants is illegal, because illegal migration and drug trafficking and other activities of the Venezuelan drug gang Tren de Aragua do not qualify as a war, "invasion," or "predatory incursion." The AEA can only be used when one of these extraordinary conditions, or a threat thereof, exists.

Throughout the extensive litigation over the AEA, in this case and others, the Trump Administration has claimed the president deserves absolute deference when he claims that an "invasion" exists. The absurd implications of this position were highlighted in yesterday's argument, when Fifth Circuit Chief Judge Jennifer Elrod (appointed by George W. Bush) asked whether the president could invoke the AEA in response to the "British Invasion" of rock stars, like the Beatles. "What if," she asked "the [President's] proclamation said 'we're having a British invasion.' They're sending all these musicians over to corrupt young minds…. They're coming over and they're taking over all kinds of establishments." Could courts then rule the president's invocation of the AEA was illegal? In response, Justice Department lawyer Drew Ensign admitted the government's position would require courts to still defer to the president, and allow him to wield........

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