“I find and declare that TdA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.”

Presidential Proclamation No. 10903 invoking the Alien Enemies Act

A Fifth Circuit panel ruled 2-1 on September 2, 2025 that no invasion or predatory incursion had occurred: "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." That ruling no longer stands. It was vacated when the full court granted rehearing, and on August 13, 2026 the en banc court dismissed the appeal as moot without deciding the merits, so no appellate court now holds the invocation unlawful. Trump's own appointee, U.S. District Judge Fernando Rodriguez Jr., had already ruled in May 2025 that the invocation was 'unlawful' and 'exceeds the scope of the statute.' Trump's own intelligence community contradicted the proclamation's core premise. An April 2025 National Intelligence Council assessment found the Maduro regime 'probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States,' destroying the claim that the gang acts as an arm of a hostile foreign government. DNI Tulsi Gabbard then fired the two officials who wrote the assessment. The Supreme Court also rejected how the power was used: in a 7-2 ruling on May 16, 2025, it blocked summary removals because detainees received roughly 24 hours' notice with no way to contest deportation, violating due process. And the human cost of the 'clear authority' claim was real: more than 230 Venezuelan men were shipped to El Salvador's CECOT prison on March 15, 2025, the vast majority with no U.S. criminal record, according to a ProPublica investigation.

In its 227-year history, the Alien Enemies Act had been invoked only three times (the War of 1812, World War I, and World War II) all during congressionally declared wars against foreign nations. Trump is the first president to invoke it against a criminal gang in peacetime. The one merits ruling still standing, from his own appointee, found that the invocation "exceeds the scope of the statute and is contrary to the plain, ordinary meaning of the statute's terms."